Former cops suffering post-traumatic stress are routinely subjected to intrusive surveillance by insurance companies. A leading lawyer has now called for an end to such tactics.
Aggressive, relentless and arguably illegal surveillance methods of insurance companies are causing extreme reactions in police pursuing insurance claims and often exacerbating their mental health conditions, a leading lawyer warns.
"From my constant review of video surveillance taken of my former police client claimants, I often see circumstances where it is clear that private investigators have breached not only privacy provisions when obtaining video surveillance but have also breached specific criminal provisions," said John Cox, principal lawyer at Slater and Gordon.
"It is a criminal offence to enter premises without the consent of the owner for the purposes of utilising a surveillance device to record a person's activities yet I have seen these provisions breached on a number of occasions by PIs."
"I see also the videoing of claimants' children and other children with no association to the claimant, and video footage taken on school grounds involving numerous school children," he said.
"Surveillance has also been taken of my clients in the privacy of their homes, at their dinner tables with their families, and also in their bedrooms."
Mr Cox said he was yet to see any video evidence showing his clients working or engaged in any activities which had not been previously disclosed to the insurers, their doctors "or which are otherwise contrary to the compensation claim being made".
"I would understand the constant pervasive use of such surveillance if it was catching out claimants engaging in work or activities inconsistent with their claims, but this is not the case," he said.
"The only conclusion I can make is that the surveillance is undertaken to place pressure on claimants or to harass them, and anecdotally I do hear of officers who simply abandon their claims due to such conduct and the ill-effects it has had on them and their families."
Mr Cox said when that happened the insurer saved on having to pay that particular claim.
None of his clients would argue against an insurer having the right to investigate a claim, he said. "However where those investigations include PIs surveilling them aggressively, at times illegally and for long periods of time then it is clearly unreasonable conduct by the insurers."
The courts have the discretion to exclude such illegally obtained video but Mr Cox insists the practice should "simply not occur in circumstances where the effect on a claimant's health and welfare is so acute".
Mr Cox, who leads the Slater and Gordon police compensation group, has called for a review of the claims-processing tactics of insurers including the legitimacy, value and prejudicial use of surveillance and private investigators - especially in claims involving former police officers suffering from psychiatric injury such as post-traumatic stress disorder, anxiety and depression.
The use of PIs and video surveillance was especially fraught with difficulties for ex-police officer claimants, he said.
The Mercury has been contacted by numerous police officers complaining that constant surveillancewas not only causing stress and anxiety for themselves but also for their families, including at times extended families such as siblings and parents who were at times subjected to surveillance.
Mr Cox said MetLife, one of the insurance companies associated with Police Total and Permanent Disablement claims, appeared to have embarked on the use of extensive video surveillance by PIs, "seemingly as a matter of course in every claim". Putting aside what must be the significant costs associated with such surveillance, it raised ethical and legal issues which needed to be considered, he said.
"I assert legally that, an insurer must have a valid reason or reasonable grounds to suspect a claim is fraudulent or the claimant's credibility is at issue before going down the avenue of extensive, protracted video surveillance.
"In my opinion, in most cases it simply does not have such grounds but [MetLife] engages PIs to undertake surveillance as a matter of course. This is especially true in cases where it holds overwhelming evidence based on which the claim should be accepted," said Mr Cox, who acts exclusively for existing and former police officers and emergency services personnel, many in the Illawarra region.
Maurice Blackburn senior associate Josh Mennen said the surveillance strategies adopted by MetLife were the most aggressive his firm had ever seen.
"A good number of psychiatrists will not place any credence on surveillance footage of people suffering PTSD in any case because it cannot and does not reveal what is going on in their heads," Mr Mennen said.
"What we know it does do, is place them under enormous stress.
"It perpetuates psychosis particularly where it involves paranoia and it has gotten to the point where this behaviour can only be seen by MetLife as an effective strategy on the basis it wears them down so they drop their case."
Mr Mennen said the surveillance was "littered with errors and inaccuracies".
"For example they are relying on footage for a client of mine supposedly driving and transporting goods when she wasn't in fact the driver. And they are relying upon website records of a male claimant who was supposedly registered as playing in a cricket team and where in fact the registration was incorrect.
"They don't double check their facts with us.
"If the insurance company can get to the credibility of the claimants, they can undermine self-reported symptoms to the doctors. It's all about attacking their credibility."
Metlife has strongly refuted the claims, saying many of the allegations are inflammatory and incorrect.
"To the extent the assertions he makes relate to MetLife, we reject any suggestion that we would be knowingly engaged in illegal or unethical practices," a spokesman said.
"MetLife always seeks to pay legitimate claims quickly and fairly. It is important to note that unmeritorious claims result in the passing on of premium increases, which is unfair for other members and unsustainable in the long run.
"MetLife uses surveillance selectively and sparingly and only where it has concerns about the legitimacy of a claim. When doing so, we conform to recognised industry standards, ensuring privacy is respected and that the surveillance is relevant, targeted and discreet."
Mr Cox said he was surprised by MetLife's response.
"In the overwhelming majority of my files I have the evidence to show Metlife's conduct regarding its usage of surveillance.
"I know my clients' experiences with surveillance. Ultimately it would be interesting to hear from other former police engaged in the process with MetLife as to their experiences with surveillance."
Mr Cox agreed there was a legitimate question about the value of the use of video surveillance in psychiatric injury claims.
"A video cannot tell you how a person is feeling or thinking in any given moment and indeed whether they are experiencing symptoms of their illness or not, simply through their physical actions."
Mr Cox was also concerned about the selective use of edited video footage obtained and used by PIs.
In a recent case, TPD insurers rejected a claim on the basis of 42 minutes of video footage in circumstances where surveillance of more than 90 hours was conducted.
"This particular client during the 42 minutes of surveillance utilised by the insurer was shown shopping for everyday items such as bread and milk and during the other 90 hours was sitting closeted in her home by herself in acute distress."
Another problem with video surveillance was that it failed to show the context of the vision relied upon.
"A client of mine was videotaped seemingly enjoying a family get-together, however, what was not revealed was that it was the first time she had been at such a get-together in many months and only attended under threat from her husband to leave her if she didn't make an attempt to re-engage with her family. It also didn't show the panic attacks she was having at the function or the physical symptoms relating to the anxiety she was suffering."
Mr Cox said clients were often encouraged by their psychiatrist and psychologists, as part of their treatment, to try to engage in social activities such as meeting friends for a coffee or to take a trip to the shops only to be confronted by aggressive PIs obviously photographing and videotaping their attempts at reintegration.
"This behaviour of course discourages these attempts and only leads to further distress and anxiety."
- It is not illegal for insurance companies to use private investigators.
- While the industry is loosely regulated by the licensing of private investigators, the operatives are free to go about their job surveilling people as long as they do not fall foul of the Surveillance Devices Act 2007.
- Under Section 8 of the Act it is illegal to trespass on private land or install or use surveillance or listening devices.
- In NSW, it is illegal to enter private property (including vehicles and commercial premises) without a lawful reason unless the owner, occupier or person in charge has consented. If consent is denied or withdrawn, the visitor must leave. Separate consent is required to take photographs or other recordings while on private property. Hidden cameras can not be used without the consent of the owner, occupier or person in charge. Access to hospitals, childcare centres, nursing homes and schools is regulated.
- Anyone in a public place can be photographed without permission. People on private property can be photographed without permission if they are visible from public property, provided the photographer is on public property.
- Private conversations cannot be recorded by a third party without the permission of everyone in the conversation. Conversations in public places may be considered private if those involved could reasonably expect it to be private (for example, they are not talking in loud voices or in places where third parties can clearly overhear them).
- Private investigators also cannot conduct themselves in a manner that constitutes harassment.
- Like with any victims of harassment, claimants who feel they are being harassed by a PI have the option of taking out an Apprehended Violence Order.
- In the case of claimants being surveilled it is rare they know the identity of the person they are alleging is behaving in a harassing manner.
- To many former police officers suffering from PTSD, depression and anxiety, the process of returning to a police station to take out an AVO can cause further anxiety.
- It is a criminal offence for companies to utilise material that has been obtained illegally.
Got a whistle to blow? An inside story to reveal? Let us know, in confidence: firstname.lastname@example.org