Scottish Court of Session Decisions

Lothian and Borders Police Board for Judicial Review of a Medical Certificate [2002] ScotCS 19 (22nd January, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD HAMILTON in the petition of LOTHIAN AND BORDERS POLICE BOARD Petitioners; for Judicial Review of a medical certificate under Regulation H2(3) of the Police Pensions Regulations 1987 ________________

 

 

Petitioners: Peoples, Q.C., Fairley; E Bain

Respondents: Clancy; Russell Jones & Walker

22 January 2002

1. For some time prior to 19 June 1998 Mr Robert Clark, the only respondent to this petition, served actively as a police constable with Lothian and Borders Police Force. On that date following an incident earlier the same day he was, under Regulation 22(1) of the Police (Conduct) (Scotland) Regulations 1996, suspended from duty. That incident apparently involved a car chase with the arrest of two suspects at its conclusion. The respondent's conduct at the time of those arrests was the subject of a formal complaint by, among others, certain of his colleagues. While still suspended the respondent in February 1999 commenced a period of sickness absence, a sick line in respect of depression being submitted at about that time. By December 1999, while the respondent was still on sickness absence, consideration was being given to his retirement from the Police Force on grounds of disablement. In that month the petitioner, which is the relevant police authority for the purposes of the Police Pensions Regulations 1987 and which was considering whether the respondent was entitled to certain awards thereunder, referred under Regulation H1 certain medical questions to a duly qualified medical practitioner (a Doctor Griffin). Doctor Griffin decided that the respondent was permanently disabled but that that disablement was not the result of an injury received in the execution of duty, his decision to that effect being certified on 10 December 1999. Following that certification the respondent was retired on 14 January 2000.
2. The complaint made in June 1998 had included allegations of criminal conduct by the respondent, namely, of assault upon the suspects arrested. The matter had accordingly, as required by Regulation 7 of the 1996 Regulations, been referred to the procurator fiscal. Criminal proceedings at the instance of the Crown were ultimately brought against the respondent. In the result after trial in August 1999 he was acquitted of all three charges of assault brought against him. Such a result did not preclude the carrying through of misconduct proceedings against the respondent in respect of the matter raised in the formal complaint. However, notwithstanding that he was warned shortly before the criminal trial that irrespective of its outcome misconduct proceedings might yet be taken, no active steps were taken in the event in that regard. On 9 December 1999, just before Doctor Griffin issued his certificate, the assistant chief constable wrote to the respondent confirming that his suspension had been terminated and that he was to return to duty with effect from 10 December. In the event, against the background of his impending retirement the respondent did not at any stage return to duty.
3. The decision by Doctor Griffin, while entitling the respondent to certain benefits under the 1987 Regulations, including an ill-health award, did not, in so far as it determined that the respondent's permanent disablement was not the result of an injury received in the execution of his duty, entitle him to an injury award thereunder. The respondent being dissatisfied in that latter respect with the certificate gave due notice of appeal against it. In furtherance of that appeal the Secretary of State appointed Doctor James Graham, a consultant psychiatrist at the Crichton Royal Hospital, Dumfries, to decide the appeal. Doctor Graham, having interviewed the respondent and obtained further information and submissions from the parties, issued a certificate dated 30 January 2001 in which he certified -

"(1) The appellant is disabled from performing the ordinary duties of a member of the police force.

(2) The disablement is likely to be permanent.

(3) The appellant is permanently disabled in respect of the following condition(s): Depression.

(4) The condition(s) at 3 above is the result of an injury received in the execution of duty".

In an explanatory letter dated 1 February 2002 Doctor Graham set out his findings and conclusions as follows: -

"In summary Mr Clark is someone with no previous history of mental illness, no family history of mental illness and no significant personality features which would make him prone to mental illness. The minor degree of obsessionality evident is not sufficient to be seen as making him particularly vulnerable to mental illness or depressive illness.

In addition Mr Clark, prior to entering the police service and since entering the police service has been involved in professional activities which exposed him to significant degrees of stress on repeated occasions without the production of psychiatric symptoms.

It is of note that Mr Clark's individual way of coping with difficulties did involve discussion with colleagues and the mutual support which colleagues offer which is known to be an effective way of dealing with the consequences of stress.

Since the events of 19 June 1998 it is clear that Mr Clark has developed a significant depressive illness of moderate degree which has only partially responded to appropriate treatment. Mr Clark continues to be disabled from this illness to a degree which is likely to be permanent in terms of his ability to perform the duties of a police officer.

It is also clear that the depression was precipitated by the events following the incident of the 19 June 1998. There was evidence that Mr Clark had, as a result of adequate and continued training, been able to cope on a regular basis with situations of a highly stressful nature without difficulty and it is my view that Mr Clark's depression is not the result of the car chase and the police activity surrounding the arrests of the suspects on the 19 June 1998. It is not my view that the symptoms of depression that Mr Clark has are the symptoms of depression associated with a post-traumatic stress disorder which could be related to the events of the 19 June 1998.

It is however my view that the events following this which include the suspension from duty, the attendance at court cases, the perceived lack of support from Lothian and Borders Police which Mr Clark felt, the inability to counteract the stress by working through it with colleagues and in general terms, the dispute between the Police Force and Mr Clark regarding his conduct, is the sole likely cause of his continuing depressive illness, which is the sole cause of his continuing medical disability which will permanently prevent him from carrying out the duties of a police officer.

IN SUMMARY

In view of the above it is my view that, as disputes with the Police Force about an officer's conduct are considered as police duty, Mr Clark's current permanent disablement is the result of an injury received in the execution of his police duty. I have therefore completed a revised certificate and have sent this to the Scottish Public Pensions Agency".

4. In this petition the petitioner seeks reduction of Doctor Graham's decision in so far as it determined that the respondent's condition was the result of an injury received in the execution of his duty. Regulation B4 (side-noted "Policeman's injury award") of the 1987 Regulations provides that a person to whom that Regulation applies shall be entitled to certain benefits. Regulation B4(1) provides -

"This Regulation shall apply to a person who ceases or has ceased 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 ...".

Regulation A11 provides:-

"(1) A reference in these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable and, where the person concerned is an auxiliary policeman, during a period of active service as such.

(2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if -

(a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or

(b) he would not have received the injury had he not been known to be a constable, or

(c) the police authority are of the opinion that the preceding condition may be satisfied and that the injury should be treated as one received as aforesaid.

...

(4) For the purposes of these Regulations an injury shall be treated as received without the default of the member concerned unless the injury is wholly or mainly due to his own serious and culpable negligence or misconduct".

Regulation A13 provides: -

"For the purposes of these Regulations disablement ... shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement ...".

Schedule A to the Regulations provides that "injury" includes "any injury or disease, whether of body or of mind".

5. It is not disputed that a condition such as depression may in some circumstances be so related to the execution of his duty that an injury award may be open to the constable concerned (Phillips v Strathclyde Joint Police Board 2001 SLT 1271). The issue in this case is whether Doctor Graham's conclusion that the respondent's permanent disablement was the result of an injury received in the execution of his duty proceeded, having regard to the medical and other findings earlier made by him, on an error of law.
6. Mr Peoples for the petitioner submitted that it was plain from those earlier findings that Doctor Graham had reached the view that the respondent's depression was not causally related to the car chase and the police activity surrounding the arrests on 19 June 1998, either in the form of an immediate effect of those events or as post-traumatic stress related to them. The substantial cause of the respondent's depression was what had had happened to him thereafter, namely his suspension from duty in furtherance of possible misconduct proceedings, his subjection to prosecution for alleged offences and the difficulties flowing from those matters. R. v Mallett, ex. p. Stunt [2001] EWCA CIV 265 ("Stunt") was directly in point and should be followed, particular reliance being placed on the views of Simon Brown L.J. at paragraphs 42 and 46. The present case was e fortiori as the respondent had virtually throughout been suspended from duty. In R. v Kellam, ex. p. South Wales Police Authority [2000] ICR 632 ("Kellam") the psychiatric injury had been sustained by the constable while at work. The statute under which the 1987 Regulations had been made (the Police Pensions Act 1976) distinguished in Section 1 between pensions "by reason of infirmity of mind or body" and pensions "by reason of injury received in the execution of [constables'] duties". Doctor Graham's certificate, in so far as to the effect that the respondent's depression was the result of an injury received in the execution of his duty, should be reduced and the case then put out By Order; depending on the grounds of the court's decision, it might be possible to avoid a remit to Doctor Graham.
7. Mr Clancy for the respondent submitted that Doctor Graham's decision should not be disturbed. Although the respondent had been suspended on the day of the incident, no active steps had been taken at any time to progress any misconduct proceedings. Notice that such proceedings might be taken notwithstanding the outcome of the criminal charges had been given to the respondent only just before his trial; his suspension had been lifted before Doctor Griffin's decision on the medical issue was known and without any suggestion that misconduct proceedings were to be pursued. It was significant that an injury award was available to a constable only where the injury was received "without his own default" and that the petitioner had not sought in this case to pursue any suggestion that an award was unavailable because of default by the respondent. On a fair construction of Doctor Graham's letter he had linked the car chase and alleged assault on 19 June 1998 to the respondent's illness through the four particular factors identified by him in the penultimate paragraph. The circumstances were very similar to those in Kellam where an award had been made and sustained. The principles identified in that case had been accepted in Stunt and in Phillips v Strathclyde Joint Police Board. Whether or not Doctor Graham had been aware of the authority on which these principles were based, he had in the exercise of a medical judgement applied them correctly. The decision in Stunt was distinguishable from the present case. If it was not, then it had been wrongly decided and should not be followed. There was no justification for reading "in the execution of his duty" narrowly or to exclude from it illness brought on by reason of the constable being subjected to misconduct or similar proceedings consequent on events occurring during service. If the constable had by his own default brought those proceedings on himself, he would for that reason not be entitled to an award; it would on the other hand be unjust if a constable who had not been in default but had nonetheless received an injury by reason of such proceedings was denied an injury award. An analysis of the various earlier decisions discussed by Richard J. in Kellam disclosed awards being properly made in circumstances similar to the present.
8. Medical questions arising under the 1987 Regulations are for determination by medical men - in the case of an appeal, by the appointed medical referee. Such decisions, however, require to be taken within the framework of the Regulations as interpreted by the courts. Legal issues may arise as to the interpretation of the Regulations themselves or of any decision letter or of both. In the case of Regulations of this kind it has been held that a "benevolent" interpretation is appropriate (Garvin v City of London Police Authority [1944] KB 358). The relevant test of causation should not be applied in a legalistic way (Kellam at p. 644 H). A decision letter should be looked at as a whole and without undue rigidity (Kellam at p. 646 B).
9. In my view Doctor Graham's medical conclusions as to the causation of the respondent's illness and his continuing disablement are clear. He carefully distinguishes between, on the one hand, the operational events of 19 June 1998, namely, the car chase and the police activity surrounding the arrest of the suspects and, on the other, the events and circumstances which followed it, namely, the respondent's suspension from duty, his attendance "at court cases" (apparently all related to his prosecution), his feeling of lack of support from the Police Force, his inability to counteract the stress by working through it with colleagues and, in general terms, the dispute between the Police Force and him regarding his conduct. It is the latter group of factors which are, in his opinion, the sole cause of the respondent's illness and disablement. In a sense, of course, these factors would not have arisen had the operational events not occurred. But the substantial cause of his illness is not in Doctor Graham's view these operational events but the events and circumstances which followed them in time. This is confirmed by his conclusion which links the relative illness to "disputes with the Police Force about an officer's conduct".
10. It is also plain that Doctor Graham's decision that the respondent's disablement is the result of an injury received in the execution of his police duty depends on the proposition, as he puts it, that disputes with the Police Force about an officer's conduct "are considered as police duty". Rephrased, the proposition inherent in Doctor Graham's decision is that the circumstances described in the penultimate paragraph of his letter were experienced by the respondent in the execution of his duty as a constable. The central issue arising for decision in this petition is whether that proposition is sound in law.
11. The 1976 Act and the Regulations made under it distinguish between infirmity or ill-health on the one hand and injury received in the execution of duty on the other. While injury includes any disease, whether of body or of mind, such a state will only qualify for an injury award if received in the execution of a constable's duty. An injury award is subject to the further condition that the receipt of the injury is without default on the part of the constable.
12. Regulation A11 makes certain provision as to the scope of the expression "injury received in the execution of duty". The words "in the execution of his duty" are to receive a "benevolent" interpretation (Garvin v City of London Police Authority, per Humphrey J. at pp. 361-2) - in the sense that the deeming provision (now Regulation A11(2)) widens to the extent there stated what might otherwise be the natural sense of those words. Where, however, as in the present case, the deeming provision does not apply, it is necessary to resort to the natural sense of the expression in its context. I am content to concur with the adoption by Simon Brown L.J. in Stunt at para. 32 of the expression "fulfilment or discharge of a function or office" as the apt sense in the whole context of the word "execution". The Master of the Rolls at para. 56 in Stunt observed that a common element in each case in which the injury had been held to have been sustained "in the execution of duty" was that-

"[an] event or events, conditions or circumstances impacted directly on the physical or mental condition of the claimant while he was carrying out his duties which caused or substantially contributed to physical or mental disablement".

For the reasons which Simon Brown L.J. gives I respectfully accept the Court of Appeal's rejection of the wider argument presented by the police authority in Stunt.

13. Simon Brown L.J. expressed the opinion that the earlier cases concluding with Kellam were rightly decided " ... provided only and always that the officer's ultimately disabling mental state had indeed been materially brought about by stresses suffered actually through being at work" (para. 34). That proviso is, in my view, both sound and critical. Unless it is acknowledged and applied the expression "in the execution of his duty" loses, in my view, all proper content.
14. As Kellam itself and some of the cases which precede it illustrate, it may on occasion be difficult to distinguish between stresses suffered through being at work and other stresses. But in the present case that difficulty does not arise. If one has regard to the four particular factors referred to in the penultimate paragraph of Doctor Graham's letter, it is plain that, with the possible exception of the act of suspension itself, these occurred when the respondent was not at work; indeed, the attendance at court cases was the result of measures taken by the procurator fiscal quite independently of the police and directed against the respondent not as a constable but as an accused person. As to the suspension itself, it is difficult to see that as an experience undergone in the execution of duty rather than simply as one consequential on the individual being a police officer and in that capacity subject to such procedure; moreover, on a fair reading of Doctor Graham's letter it seems reasonably clear that it was the experience over time of being suspended from duty which had the medical consequences rather than the act of suspension itself.
15. The practical result of the respondent's suspension from duty between June 1998 and December 1999 was that throughout that period he was excused (and possibly also disabled) from performing his ordinary duties as a constable. While Simon Brown L.J. in Stunt at paragraph 49 was unwilling "in circumstances like these" to draw a distinction between officers suspended from duty and those continuing at work, he did so in the context of his rejection of an argument that the claimant in that case (who had not been suspended) should be supposed to have suffered exacerbated stress as a result of continuing to work. Where a constable is in fact suspended and consequently not at work, it will, at least ordinarily, be difficult, if not impossible, to attribute stress only then arising to his "work circumstances" or to regard such stress as arising in the fulfilment or discharge of his duty. As to the counteracting of stress, while the respondent's suspension had the consequence that he was unable to deploy his ordinary mechanism for coping with difficulties, the absence of that facility cannot be said to be stress suffered actually through being at work; moreover, it must be doubted whether in the particular circumstances closer communication with work colleagues would have had the usual alleviating effect.
16. In Stunt the claimant failed on the "narrower argument". Although I heard submissions from Mr Peoples in support of the Court of Appeal's approach on this aspect and from Mr Clancy in criticism of it, I find it unnecessary in the circumstances of this case to reach a concluded view on that matter. I confess to having some difficulty with that approach in so far as it may suggest that injurious effects of being subjected to disciplinary proceedings can never be "injury received in the execution of duty". For example, at least under the Scottish misconduct code a constable may in some circumstances be required to appear before a misconduct hearing (Regulation 6 of the 1996 Regulations). While in certain circumstances the hearing may proceed in his absence (Regulation 16), on the face of the Regulations he has a duty to attend if required to do so (and his failure to do so might itself constitute misconduct). If having attended as required a constable then sustained without default on his part psychological injury (say, as a result of wholly ill-founded accusations being pressed against him) or physical injury (say, in some accident at the hearing), it is not obvious to me that he would not be entitled to an injury award. As, however, I have reached a view in this case without the necessity of relying on the "narrower argument" issue, it is unnecessary to reach a conclusion (which might in any event be difficult) as to whether or not the misconduct proceedings were in the respondent's case at any relevant stage being seriously pressed.
17. Mr Clancy submitted that a police authority was sufficiently protected against the making of inappropriate injury awards in the context of misconduct proceedings by the condition that they were available only where injury was received "without his own default" (Regulation B4(1)). Here no allegation of default on the part of the respondent had been made (or at least pressed). I am not, however, satisfied that this provides a satisfactory solution. The conditions that the injury is sustained "without his own default" and "in the execution of his duty" must each be satisfied.
18. It is not clear from Doctor Graham's letter what was the source of the proposition "as disputes with the Police Force about an officer's conduct are considered as police duty". Whatever its source, it is, at least in the context of the present case, in my view unsound in law. As Doctor Graham's conclusion and certificate clearly proceed upon it, I have no alternative, having, I believe, construed his letter without undue rigidity and reached the legal views which I have, but to reduce that certificate at least in so far as concerns paragraph 4 of it. As the form of the order of reduction and of any consequential order may require further consideration in light of this Opinion, I shall put the case out By Order for that purpose.