Scottish Court of Session Decisions

[1] In this petition for judicial review the petitioner, who is a former police inspector, seeks the reduction of two medical certificates granted in connection with his claim for a pension under the Police Pensions Regulations 1987. The petition came before me for a first hearing when argument was confined to two preliminary pleas-in-law tabled by the respondent, the Chief Constable of Grampian Police. The pleas were a plea of all parties not called, and a plea to the relevancy.

[2] The first certificate under review is a certificate dated 21 May 1999 granted by Dr Barclay Brown, as a duly qualified medical practitioner in terms of Regulation H1(2) of the Police Pensions Regulations, certifying that the petitioner's permanent disability to perform the normal duties of a police officer was not the result of an injury received in the execution of his duty. The second is a certificate dated 7 December 1999 granted by Dr George Dodds, a consultant psychiatrist, as a medical referee in terms of Regulation H2(2), refusing the petitioner's appeal against the decision of Dr Brown as set out in his certificate.

[3] The petitioner avers that the respondent decided that the petitioner should retire on the ground that he was permanently disabled from performing the ordinary duties of a member of the police force with effect from 31 August 1998. The petitioner intimated that he wished to claim a gratuity and an injury pension in terms of Regulation B4, on the basis that he had ceased to be a member of a police force and was permanently disabled as a result of an injury received without his own default in the execution of his duty. Initially, the respondent refused to consider the petitioner's claim. The petitioner appealed this refusal to the sheriff, and in the course of the appeal the respondent agreed to refer to a duly qualified medical practitioner selected by him the question whether the petitioner's disablement was the result of an injury received in the execution of his duty. In doing so the respondent agreed to proceed in terms of Regulation H1(2)(c) and (d). The qualified medical practitioner selected was Dr Barclay Brown and he gave his decision answering the question in the negative in the certificate dated 21 May 1999.

[4] The petitioner then appealed against that decision in terms of Regulation H2(2) and the respondent notified the Secretary of State accordingly. The Secretary of State appointed Dr George Dodds as a medical referee, and Dr Dodds issued his decision refusing the appeal in the certificate dated 7 December 1999. For the purposes of the pleas-in-law which were debated before me, it is not necessary at this stage to elaborate further on the facts and the grounds of the petition.

[5] In support of his plea of all parties not called counsel for the respondent submitted that the true respondents to the petition were the Scottish Ministers, as statutory successors to the Secretary of State. According to Form 58.6 appended to the Rules of Court, the appropriate respondent in a petition for judicial review was the decision-maker whose decision was being challenged. One of the decisions challenged in this case was the decision of an independent medical referee appointed by the Secretary of State. The referee was independent of the parties, not of the Secretary of State or his successors. While the Chief Constable had an interest in the outcome of the petition, such an interest was not a basis upon which he should be called as a respondent. Moreover, the Scottish Ministers exercised general oversight over the government and administration of police forces in Scotland. In these circumstances the Scottish Ministers ought to be respondents to the petition. In an alternative argument counsel for the respondent submitted that the true respondent was Dr Dodds himself.

[6] On behalf of the petitioner it was argued that the real issue was whether the referee's decision was the decision of an independent person or a decision taken on behalf of the Scottish Ministers. The only involvement of the Scottish Ministers was to receive notification from the Chief Constable of the petitioner's appeal and to appoint an independent person to act as the medical referee to decide the appeal. The Ministers had validly carried out these functions and had no further interest in the matter. The medical referee was independent of the Scottish Ministers. The correct respondent was the party on the other side of the dispute, in this case the Chief Constable. It was not appropriate that either of the two doctors should be respondents. They should not be expected to defend their decisions at their own expense.

[7] In order to determine who should be the respondents in this petition it is necessary to examine the scheme of the relevant legislation. Section 1(1) of the Police Pensions Act 1976 provided for the making of Regulations by the Secretary of State as to the pensions to be paid to members of police forces. Section 1(2) required such Regulations to provide for the payment of pensions to persons who ceased to members of a police force by reason of infirmity of mind or body and/or by reason of injury received in the execution of their duty. Section 6(1) provided that the Regulations should make provision as to the court or other person by whom appeals should be heard and determined in the case of any person aggrieved by the refusal of the police authority to admit a claim to receive a pension or a larger pension than that granted. Section 6(3) provided that the Regulations might provide for the reference of any matter prescribed, by the police authority or by the court, to a medical practitioner, whose decision would be final.

[8] The Regulations made pursuant to the Act are the Police Pensions Regulations 1987. Regulation B4 provides that a person who ceases to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty is entitled to a gratuity and an injury pension. Regulation H1(1) provides that the question whether a person is entitled to an award under the Regulations is to be determined in the first instance by the police authority. In terms of Regulation H1(2) where a police authority are considering whether to grant an injury pension, they require refer for the decision of a duly qualified medical practitioner selected by them the question whether the disablement is the result of an injury received in the execution of duty. Regulation H1(4) requires the decision of the medical practitioner on the questions referred to him to be expressed in the form of a certificate. In terms of section H2(2), if the person concerned is dissatisfied with the decision of the selected medical practitioner, he may give notice to the police authority that he appeals against the decision. In that event, the police authority are to notify the Secretary of State accordingly, and the Secretary of State must appoint an independent person or persons (the medical referee) to decide the appeal. Regulation H2(3) requires the decision of the medical referee to be expressed in the form of a certificate of his decision on any of the questions referred to the selected medical practitioner on which he disagrees with the latter's decision.

[9] According to Regulation H1(1), the duty to determine whether a person is entitled to a pension lies in the first instance with the police authority. Where that determination involves a medical question, the Regulations recognise that medical expertise is required. Regulation H1(2) therefore enjoins a police authority who are considering whether a person is permanently disabled, to refer that question to a selected medical practitioner. The same applies when the authority are considering whether to grant an injury pension, and the question which requires to be determined is whether the disablement is the result of an injury received in the execution of duty. The effect of these provisions of Regulation H1(2) is not to relieve the police authority of the duty to determine a person's entitlement to a pension. It is rather to stipulate the method of determination when a medical question is involved. The medical practitioner is in effect the means by which the police authority is to make a decision on a medical question. It is significant that Section 6 of the 1976 Act does not make provision for appeals against the decision of the selected medical practitioner, but for appeals against anything done by the police authority. In these circumstances, if the certificate of a selected medical practitioner can validly be the subject of judicial review, the appropriate respondent is the police authority.

[10] So far as the provisions relating to appeals are concerned, Regulation H2(2) provides that a person who is dissatisfied with the decision of a selected medical practitioner should give notice to the police authority that he wishes to appeal. The police authority are then required to notify the Scottish Ministers and the Scottish Ministers in turn are required to appoint a medical referee to decide the appeal. In my opinion, these provisions are analogous to the provisions governing the determination of medical questions at first instance. The intention of the Regulations is that the appeal should be to the Scottish Ministers but, because the question at issue on appeal requires medical expertise for its resolution, the method by which the Ministers are to make the decision is by reference to the medical referee. The medical referee is intended to stand in the same relationship to the Scottish Ministers as the selected medical practitioner does to the police authority. Moreover, the Scottish Ministers are responsible for the selection of medical referees and for the administration of the system of appeals. As a matter of practical fact they provide guidance through the Scottish Public Pensions Agency to medical referees in relation to the conduct of appeals. The provisions of Form 58(6) make it clear that the respondent in a judicial review will normally be the decision-maker. In these circumstances the appropriate respondents to the petition, insofar as it seeks review of the medical referee's certificate, are the Scottish Ministers.

[11 In a separate argument, based on his plea to the relevancy, counsel for the respondent argued that Dr Brown's certificate of 21 May 1999 could not be the subject of judicial review, since the Regulations provided for a full review of that certificate by way of appeal. Schedule H to the Regulations enabled the medical referee to carry out such further interviews and examinations as he considered necessary, and provided for the submission to him of statements on behalf of the parties, and for the attendance of qualified medical practitioners appointed by the parties at interviews and examinations conducted by him.

[12] Counsel for the petitioner argued that this question should not be decided in isolation but should be left over to a full hearing on the merits of the petition. I agree. It is clear from the speeches in Lloyd v McMahon [1987] 1AC 625, recently cited by Lord Eassie in Cooper v Secretary of State for Scotland 2000 SLT 138, at pages 144 and 145, that there are circumstances in which administrative or quasi judicial decisions at first instance, even when they have been the subject of an appeal provided for by the relevant legislation, may be judicially reviewed, depending on the grounds of review, and the nature of the powers available to the appeal body.

[13] In my view, the question whether Dr Brown's certificate may properly be the subject of judicial review cannot be decided in isolation, but requires the benefit of full argument as to the nature of the alleged defect in it, and the capacity of the medical referee to provide a complete remedy, having regard to the powers conferred on him by Regulation H2(3).

[14] In the circumstances I shall sustain the respondent's plea of all parties not called and continue the first hearing to enable service to be effected on the Scottish Ministers. I shall not repel the respondent's plea to the relevancy but shall leave it standing to enable further argument to be advanced at the subsequent hearing.