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Grubb v. Jones [2003] ScotCS 210 (25 July 2003)

OUTER HOUSE, COURT OF SESSION

P379/02

OPINION OF LORD EASSIE

in Petition of

RHODERICK GRUBB

Petitioner;

against

DR D G JONES

First Respondent;

and

LOTHIAN AND BORDERS JOINT POLICE BOARD

Third Respondents:

for

Judicial Review of decisions of a duly qualified Medical Practitioner and a Medical Referee in terms of the Police Pensions Regulations 1987

________________

Petitioner: Clancy, Q.C.; Macbeth Currie

First and Third Respondents: Swanson, Solicitor-advocate; Maclay Murray & Spens

25 July 2003
Introduction
[1] The petitioner is a former policeman who retired from the police force on 9 May 2001 on medical grounds. In this petition he seeks to challenge decisions by two medical practitioners, namely a Dr Jones - the selected medical officer - and a Dr Hyland - the medical referee - in consequence of which the Lothian and Borders Police Joint Board refused to grant the petitioner an "injury award", in addition to the "ill-health award" which he received on his retiral. Dr Jones and Dr Hyland have been convened as the first and second respondents respectively. The Board are the third respondents and intimation has been made to the Scottish Public Pensions Agency, as the branch of the Scottish Executive concerned in the appointment of the medical referee. By letter to the petitioner's solicitors the Executive intimated that it did not intend to involve itself in these proceedings. The medical referee, through her solicitors, has also written to the petitioner's agents indicating inter alia that she did not intend to enter opposition. It will be necessary to advert later to the terms of that letter. Although answers have been lodged only on behalf of the selected medical officer (the first respondent), he and the Board are jointly represented by the same agents and presented a common position.

The Substantive Regulatory Framework
[2] The pension entitlements of a police officer are governed by, among others, the Police Pension Regulations 1987 (SI 1987/257).

[3] Where a policeman requires to resign his office on the ground that he is permanently disabled (disability being defined in Regulation A12(2) as " ..inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force ..." ) he is entitled in terms of Regulation B3 to an "ill-health award". It is not in dispute in the present case that the petitioner did retire on grounds entitling him to an "ill-health award" and no issue arises as to its amount.

[4] While a police officer who thus retires on grounds of permanent disability may receive an ill-health award in terms of Regulation B3 irrespective of the cause of his permanent disability, he may be entitled to an additional award under Regulation B4 where he is permanently disabled "as a result of an injury received without his own default in the execution of his duty ...". Schedule A to the regulations defines " injury" as including " any injury or disease, whether of body or of mind". Whether an injury, so defined as also including mental illness, which is the nature of the injury with which one is concerned in the present case, is an injury received in the execution of the officer's duty is the subject of further definition in Regulation A11, paragraph (1) of which states that it means "... an injury received in the execution of [the] person's duty as a constable ...". Regulation A13 provides that for the purposes of the Regulation disablement "shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement".

The Procedural Regulatory Framework
[5] Whether an officer, or former officer, is entitled to an award under the regulations is to be decided in the first instance by the Police Authority - in casu the third respondent. Thus Regulation H1(1) states:-

"(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the Police Authority."

However, paragraph (2) of Regulation H1 then provides:-

"(2) Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions -

(a) whether the person concerned is disabled;

(b) whether the disablement is likely to be permanent;

and, if they are further considering whether to grant an injury pension, shall so refer the following questions:-

(d) the degree of the person's disablement;

and, if they are considering whether to revise an injury pension, shall so refer question (d) above."

Paragraph 3 of Regulation H1 is, I was told, not relevant to the present case, but paragraph 4 provides that:-

"(4) The decision of the selected medical practitioner on the questions referred to him under this Regulation shall be expressed in the form of a certificate and shall, subject to Regulations H2 and H3, be final."

[6] Of the provisions referred to in that last quoted paragraph of Regulation H1, I was informed by counsel that only those contained in Regulation H2 are pertinent. They allow, in paragraph (1), for the officer concerned obtaining a copy of the selected medical officer's certificate. Paragraphs (2) and (3) then provide as follows:-

"(2) If the person concerned is dissatisfied with the decision of the selected

medical practitioner as set out in his certificate, he may, within 14 days after

being supplied with the certificate or such longer period as the police authority may allow, and subject to and in accordance with the provisions of Schedule H, give notice to the police authority that he appeals against the said decision, and the police authority shall notify the Secretary of State accordingly, and the Secretary of State shall appoint an independent person or persons (hereafter in these Regulations referred to as the 'medical referee') to decide the appeal.

(3) The decision of the medical referee shall, if he disagrees with any part of the certificate of the selected medical practitioner, be expressed in the form of a certificate of his decision on any of the questions referred to the selected medical practitioner of which he disagrees with the latter's decision, and the decision of the medical referee shall, subject to the provisions of Regulation H3, be final."

As already mentioned, the provisions of Regulation H3 are seemingly not pertinent to the present case. Within Schedule H to the Regulations one finds, inter alia, provision for the submission by the appellant and the police authority of statements respecting the appeal; for the interview and examination of the appellant by the medical referee; and for the attendance at such interview and examination of the selected medical practitioner and any medical practitioner appointed by either party.

The Basic Chronology
[7] The last date upon which the petitioner worked as a police officer was the duty day preceding his attending, on 2 September 2000, his general medical practitioner who signed him off as unfit for work. He was suffering from stress. It appears that prior to that date the petitioner had had extensive absences on account of illness but it is not necessary to go into detail of those absences. According to the affidavit and oral evidence of the petitioner he received later in September 2000 a letter which advised him that he was to be referred to the police force occupational health advisor. He saw an occupational health nurse at Princess Margaret Rose Hospital on 6 October 2000 and a Dr Blair in December 2000. He began to receive counselling from the police force welfare officer, a Mr Lane.

[8] On 19 January 2001 the petitioner was seen by the first respondent, Dr Jones, who is an occupational physician in the employment of Fife Primary Care NHS Trust through whom Dr Jones acts both as a general advisor to the third respondent and its officers and as a selected medical officer in pension matters. What transpired between Dr Jones and the petitioner at this and subsequent consultations was the subject of oral evidence, led under reservation of the plea to the competency to which I shall later refer. For present purposes I do not embark on any detailed narration of that evidence beyond that which I perceive to be essentially undisputed history.

[9] At the consultation on 19 January 2001 the petitioner attributed his condition to stress induced by his working conditions. He maintained that the stress and the mental condition of which he complained, rendering him unfit for duty, arose by reason of a persistent failure by the third respondents to provide sufficient manpower at the particular station to which he had been recently assigned, with the consequence that he had been subject to unusual and exceptional demands by comparison with police officers in general. Sensing that this contention raised an issue going beyond simple disability rendering the petitioner unfit to perform the duties of a police officer and raising possible questions of the appropriateness of an injury award by reason of a link to the execution of duty, the first respondent dictated the letter No 7/1 of process dated 23 January 2001 in which, having referred to the fact that the petitioner attributed his medical condition to his work situation, he wrote -

"I should perhaps say a few more words on this latter point as you will no doubt wish to assess whether the pressures upon him were in anyway unusual and out of the ordinary. Constable Grubb says he had a build up of stress over the last 12-15 months. This got worse when he moved to Gayfield Police Station due to a shortage of manpower which meant that he had a very heavy workload".

[10] Dr Jones saw the petitioner again on 20 February 2001 at the petitioner's request. By that date Dr Jones had not received a response to his earlier letter although he had spoken with the Personnel Division indicating that he was awaiting information on the petitioner's working conditions. Following the examination of the petitioner on 20 February the first respondent wrote on 22 February 2001 to the Division the letter which is now No. 7/3 of process.

[11] The next, and for present purposes, final interview and examination of the petitioner by the first respondent took place on 29 March 2001. By that date Dr Jones had received the Divisional Personnel Officer's letter No 7/8 of process which, though dated 16 February 2001, was not received by Fife NHS Trust until 22 February 2001 and was only seen by Dr Jones sometime thereafter. In it the writer reported that she had been informed by Chief Inspector Simpson that he had compared the petitioner's workload with that of his colleagues and that she could confirm that the petitioner's work was significantly lower; and that the teams were adequately manned. The first respondent also had before him a further letter from the Divisional Personnel Officer dated 15 March 2001 (No 7/4 of process) in response to his letter 22 February 2001. In her letter of 15 March 2001 the Divisional Personnel Officer inter alia expressed the Divisional view that the petitioner's retiral was not the result of an injury on duty. Following the examination on 29 March 2001 the first respondent issued a certificate dated 2 April 2001 to the effect that the petitioner was suffering from depression and anxiety permanently disabling him from performing the duties of a police officer and that his condition was not the result of any injury received in the execution of his duty as a policeman. He also wrote to the Board a letter dated 2 April 2001 which is now No 7/5 of process.

[12] The petitioner appealed against the refusal of an injury award and the matter was duly referred to the second respondent, the medical referee appointed by the Scottish Ministers. It appears that the medical referee had before her not only the records of the petitioner's general medical practitioner and a report from a consultant psychiatrist dated 22 June 2001 but also written submissions from the petitioner's solicitors, Hughes Dowdall, Glasgow and from the Board. I also understand her to have received oral submissions following her interview and examination of the petitioner. She issued her decision in a report dated 21 October 2001 (No 6/2 of process). In the penultimate paragraph she expressed her conclusion that the petitioner's depressive disorder was not the result of any injury received in the execution of his duty as a member of the police force but was due to intrapersonal difficulties exacerbated by the existence of a post viral fatigue syndrome.

The Medical Referee's Decision
[13] It is convenient first to consider the challenge to the decision of the medical referee appointed by the Scottish Ministers in respect of the petitioner's appeal from the first respondent's certificate. Although in the petition there is an allegation that the proceedings before the referee were vitiated by reason of an alleged breach of natural justice in respect that the first respondent was in attendance at the hearing, counsel for the petitioner did not advance this in his submission. As already indicated, the regulations provide for the attendance of the selected medical officer at the appeal. The ground upon which counsel for the petitioner sought reduction of the decision was that the referee had erred in law. She had failed to recognise or apply - to the issue whether the injury was received in the execution of duty - the correct legal test, namely whether there was a substantial causal connection between the petitioner's illness and the performance of his duties as a police officer. It was contended in the petition that in holding that the petitioner's illness was due to intrapersonal difficulties the medical referee had failed to recognise that the petitioner's vulnerability or susceptibility to illness of the kind in question was not a bar to the making of an injury award. In so doing she failed, according to averment, to have regard to a highly material consideration.

[14] As already indicated, the medical referee - the second respondent - has not lodged answers to the petition but by letter of 30 October 2001(No. 6/4 of process) solicitors acting for the second respondent wrote to the petitioner's solicitors. In the course of that letter they wrote the following:-

"We consider that Dr Hyland [the second respondent] was placed in a very

difficult situation in view of the particular features of this case. She was required to act as a Medical Referee following an appeal against the findings of the first respondent, Dr Jones, that Mr Grubb's psychological and health problems were not as a result of an injury received in the execution of his duty. Dr Hyland was not aware of the decision making process undertaken by Dr Jones, nor was she given adequate guidance given the complexity of the issues which she faced. We consider that Dr Hyland discharged her responsibilities in good faith at all times.

Dr Hyland is of course not legally qualified. Had she been given clearer guidance, and, in particular, had her attention been drawn (for example) to the matters set out in Lord Hamilton's summary of relevant law in Phillips v Strathclyde Joint Police Board 2001 S.L.T. 1271 at para.16, she would have been greatly aided in making her decision. However, having sought independent legal advice in the light of the petition, Dr Hyland accepts that there is some force in the criticism of her approach in law contained in the Petition. We do not intent to lodge Answers to the Petition, but wish to record our grave concerns regarding the absence of guidance given to Dr Hyland".

Mr Clancy, who appeared for the petitioner, submitted that the terms of those paragraphs of the letter amounted to a concession by the second respondent that she had been under an error as to the law. For her part, Mrs Swanson, the solicitor-advocate appearing on behalf of the compearing first and third respondents intimated that she did not oppose reduction of Dr Hyland's decision.

[15] In these circumstances, given the representation on behalf of the medical referee in a letter from her solicitors that she may not have had a complete understanding of the relevant law and the consent of the Board's representative to reduction of the decision of the medical referee, I have come to the view that the interests of justice might not be seen to have been observed were I not to accede to the motion for reduction of the medical referee's decision. I shall therefore grant reduction of that decision. In so doing I would however stress that, in the absence of any contradictor, I did not hear any substantive argument on whether the medical referee's decision was vitiated by an error of law and that the quashing of that decision, adverse to the petitioner, does not imply that on reconsideration the decision must be favourable to the petitioner's interest. The whole matter is simply opened up for consideration of new. In other words, reduction of the medical referee's decision does not imply that furnished with the legal guidance desiderated by the medical referee's solicitors, the medical referee would necessarily have reached a conclusion favourable to the petitioner. As respects the concerns expressed that the medical referee had not been given sufficient guidance, I would respectfully observe that while the decision in Phillips v Strathclyde Joint Police Board had not been issued at the date of the medical referee's examination of the petitioner and had not been published in the Scots Law Times at the date of her decision, in large measure the opinion in Phillips summarises and applies the import of earlier decisions on the same regulations in England and Wales. The petitioner was represented before the medical referee by a solicitor. The Board were also represented. It was not suggested by either counsel for the petitioner or the solicitor-advocate for the Board that the medical referee was addressed as to the appropriate law to be applied. Given the presence of legal representation it was to be expected that the medical referee would be properly addressed on the relevant law and if it be the case that she was not given the guidance to be expected from members of the legal profession, that is a matter of regret.

The Selected Medical Officer's Decision - Competency
[16] The petitioner seeks not only to challenge the decision of the medical referee but also that of the selected medical officer, the first respondent. Given the existence of the statutory appeal from a decision of the selected medical officer to the medical referee, the first respondent pleads that this application for judicial review of his decision is incompetent. I would add that the challenge to the validity of the first respondent's decision was persisted in albeit that the Board had indicated their consent to reduction of the decision of the medical referee.

[17] Before adverting to the submissions advanced regarding competency, it is convenient to summarise briefly the grounds ultimately advanced on behalf of the petitioner for challenging the decision of the first respondent. Although the petition contains a plea-in-law stating the decision to have been ultra vires there are no averments which set out any basis for the decision being ultra vires. In the event any contention that the decision was ultra vires was, in my view rightly, not pursued. Counsel for the petitioner contended:-

(a) the first respondent had truly decided in favour of the petitioner but had altered that view in light of the opposing view communicated to him by the Board, which was an illegitimate reason upon which to base his decision;

(b) the first respondent did not properly resolve the conflicting factual contentions before him respecting the petitioner's working conditions but simply yielded to the Board's opposition;

(c) if the first respondent did accept the Board's account of the petitioner's working conditions, rather than that of the petitioner's, his decision was arbitrary;

(d) further, the full terms of the Board's account were not summarised to the petitioner in that the petitioner was not informed by the first respondent of the identity of the police officer through whom the information had been supplied, nor of the contention that the petitioner had had a lighter workload than his colleagues; and

(e) the first respondent had not applied the correct test, set out in Phillips, and was thus in error as to the law.

[18] In inviting me to uphold the first respondent's plea to competency Mrs Swanson advanced two principal submissions. First, she submitted that where a decision was the subject of a statutory form of appeal, an application for judicial review was excluded as incompetent. In support of that submission she referred to British Railways Board v Glasgow Corporation 1976 S.C.224, which vouched the proposition that, apart from special circumstances, the existence of a statutory form of appeal excluded the supervisory jurisdiction of the Court of Session. Similarly, Mensah v Secretary of State for the Home Department 1992 S.L.T.177 demonstrated that, while the existence of a fundamental nullity in the original purported decision might allow reduction of the whole proceedings, the existence of a statutory appeal precluded judicial review of the decision subject to that appeal. Although the petition referred briefly to the first respondent's decision as having been ultra vires that was not now argued by counsel for the petitioner. Secondly, Mrs Swanson submitted that, in so far as an appeal to the medical referee effectively constituted a complete re-hearing of the application and was not simply a review of the legality of the initial decision, any procedural defect in the process of arriving at the first decision would be cured. This, I understood, to be submitted with particular regard to the petitioner's contention that in his interview and examination of the petitioner on 29 March 2001 the first respondent had not disclosed the identity of the police officer giving him the information about the petitioner's working conditions nor had expressly put the point that the Divisional information was to the effect that the petitioner had indeed had a lighter workload than his colleague. In support of that proposition Mrs Swanson referred to Colvin v Carr [1980] AC 574; Whitbread & Co Plc v Mills [1988] I.C.R 776 West Midlands Co-Operative v Tipton [1986] 3 All E.R.513.

[19] Although at one point in his submissions counsel for the petitioner submitted, under reference to Ridge v Baldwin 1964 AC 40, that the exercise of a right of statutory appeal did not exclude judicial review of the decision from which the appeal was taken, I ultimately understood his position to be one of acceptance that one could not advance in a petition to the supervisory jurisdiction any ground which might be encompassed within the scope of the statutory appeal. Counsel referred to Clyde & Edwards on Judicial Review para 12.11. Counsel for the petitioner noted the exception of fundamental nullity in British Railways Board v Glasgow Corporation. Counsel for the petitioner particularly invoked Mensah as indicating that a fundamental nullity in the original proceedings might be judicially reviewed, notwithstanding the existence of a statutory appeal against a decision which was not such a nullity. Although conceding that the decision of the first respondent could not be seen to be ultra vires, Mr Clancy submitted that in so far as, in his contention, the first respondent had reached the view that he should accede to the view of the Board, that accession amounted to an effective abdication of his decision taking power and might, said counsel, be seen to be in some way roughly equivalent to a fundamental nullity.

[20] In my view it is clear that, subject to an absolute fundamental nullity in the original proceedings, as occurred in Mensah, it is not competent to challenge by means of the supervisory jurisdiction of the Court of Session administrative decisions which are in themselves subject to a statutory system of appeal. One could, I think, add to the citation of authority to me but it would be largely repetitious. Judicial review may not be substituted for a means of statutory appeal either not used, or used but without success. Where, as in this case, the decision of the statutory appellant authority is open for review, reduction of that apparent decision opens up again all the grounds for appeal against the first instance decision. In this respect I endorse the view expressed by the Lord Ordinary (Milligan) in Chowrdry, Petitioner 1999 S.L.T 697, 699, L ff.
[21] In the course of his argument counsel for the petitioner contended that the function of the medical referee was restricted; and hence the scope of the appeal was restricted, allowing, said counsel, room for judicial review of matters outwith that limited scope. Thus the medical referee, said counsel, was able to deal with medical issues but not with the "sort of issues arising in this case", by which I understood him to mean the existence of a causal link between the medical condition and the execution of the police officer's duty. Since, from her agent's letter, the second respondent had not understood the legal test, how, asked counsel, could a referee be expected to deal with the issues raised in this petition for judicial review? Accordingly those issues could not be encompassed within the scope of the statutory appeal.

[22] I am unable to accept this contention. In my view it is plain that the appeal to the medical referee involves a re-hearing, not a controlling review of the legality of the exercise by the selected medical officer of his decision-taking power. The questions upon which the medical referee is required to reach his independent decision are the same as those for the selected medical officer. As counsel for the petitioner was eventually constrained to accept, the regulation placed no limit on the grounds of appeal or the powers of the medical referee on an appeal. Indeed, the re-hearing on appeal may be a wider hearing, with the opportunity for submission of reports and argument. However difficult it may be in cases such as the present to determine whether a mental condition is sufficiently causally connected to the execution of duty as a police officer, the regulations place that task equally upon both the selected medical officer and the medical referee. The argument of counsel for the petitioner that such issues are not embraced within the medical referee's appellate re-hearing, would inevitably also mean that they are not within the original function of the selected medical officer. Understandably, no submission to that latter effect was made to me.

[23] The other, previously mentioned, contention advanced by counsel for the petitioner in this branch of the case was that, assuming it to be established, Dr Jones' belief that in the circumstances presented he effectively had to issue a decision compatible with the Board's wishes was an abdication of true decision taking, which might, said counsel, be seen as equivalent to some fundamental nullity. In my opinion there is no substance in this contention. There is no doubt that - in contrast to the decision in Mensah - the first respondent was properly and duly vested in the power to decide the pertinent questions under the regulations. Nor is there any formal or other executory questions respecting the certificate issued by him. Esto it were true that a selected medical officer believed that he was under some necessity to decide against his better judgement in favour of the Board, that simply amounts to a decision induced by the taking into account of an irrelevant or improper factor. That does not go to the foundation of the selected medical officer's decision-taking jurisdiction. There is no obstacle to such an objection or defect being corrected by the statutory appeal.

[24] Finally, it is appropriate to mention a point advanced in the petition and to which counsel for the petitioner adverted in the course of his argument as supportive of judicial review of decisions of the selected medical officer. This was the unilateral nature of the appeal provisions, only the officer being given a right of appeal to a medical referee appointed by the Scottish Ministers. One recognises, of course, the practical advantage conferred on the officer actually receiving a favourable opinion from the selected medical officer. One might have understood a possible argument (which I am not to be seen as endorsing) from the Board that the unilateral nature of the right of appeal gave the Board scope to seek judicial review of the original decision of the selected medical officer. But in that event, the unilateral advantage falls, at least to some extent. It is, I think, very difficult to say that the selected medical officer's decision may be open to judicial review by the policeman on the ground of the unilateral nature of appeal provisions without also saying that it is open to at least equivalent review by the Board. All of which simply underscores that where the legislative authority has laid down a system of appeal it makes sense that it should not be open to the court, by judicial review, to alter or supplement or detract that from that system of appeal.

[25] I therefore uphold the plea that review of the first respondent's decision is incompetent.

[26] While that is sufficient therefore for disposal of this application it is none the less appropriate, lest the petition proceed further, that I give brief expression to my view of the evidence tendered to me. I do so with the observation that, at least in my view, the question whether a decision, such as that of the first respondent, which is subject to statutory appeal may competently be reviewed under an application to the supervisory jurisdiction of the Court of Session ought normally to be determined in limine and should not be reserved for determination after the hearing of evidence regarding the decision taking process. It is, I think, unsatisfactory that a decision-taker whose decision is subject to a statutory appeal in which he is not subject to a requirement to give evidence as to his thinking should nonetheless be subject to that process in proceedings for judicial review because the extent, if any, to which his decision is open to competent challenge by that means has not been determined in limine.
[27] The basic history and the contentions of counsel for the petitioner critical of the first respondent have already been set out and what follows are essentially supplementary to what has already been stated.

[28] Firstly, by way of a preliminary observation I would record that in his evidence Dr Jones alluded to the difficulty which he had in deciding whether he was initially seeing the petitioner as a general medical advisor to the police force or as a selected medical officer. He explained that it was difficult to point to an exact stage at which he moved entirely from being a general advisor to being the selected medical officer. Given the structure of the regulations, it appears to me to be important that a police authority make plain that the medical practitioner is appointed to act, in terms of the regulations, as the selected medical officer. Additionally, it may be observed that the regulatory framework places upon the selected medical officer a task potentially going beyond any medical expertise, namely that of determining whether injury which sustained was received in the course of the execution of a police officer's duty. Thus, to take an extreme example, the regulatory framework would appear to contemplate that an issue whether a disabling injury was received by an officer in the course of chasing a housebreaker as opposed to a contrary view that it was sustained while playing football in a private capacity is to be decided by the selected medical officer notwithstanding that the selected medical officer is not a court, nor an investigating authority with power to compel or interview witnesses.

[29] Although, at the outset, on 19 January 2001 Dr Jones viewed his role as perhaps being more that of the general police force medical advisor, he was nonetheless conscious that the petitioner was attributing his condition to exceptional working conditions. As he indicated, it was thus relevant at this stage from a therapeutical standpoint as well as a possible pension standpoint to know whether the petitioner had in fact been subject to exceptional overwork. Hence the passage in his letter of 23 January 2001 No 7/1 of process which has already been quoted. At some point in the earlier part of February 2001 Dr Jones had a further telephone conversation with Miss Bork of the Personnel Division seeking a response to that point which had been raised in that letter. It appears that his prompting eventually produced the letter No 7/8 of process, which however, as already mentioned, Dr Jones did not have before him when the petitioner attended at his own request on 20 February 2001.

[30] In his evidence Dr Jones accepted that at that consultation on 20 February 2001 he was sympathetic to the petitioner's receiving an injury award, were the petitioner's account of having been subject to exceptional working conditions correct, and that he so expressed himself to the petitioner. Although there are some differences of detail and emphasis the oral accounts of this consultation given by the petitioner and Dr Jones did not appear to me to differ substantially. In his manuscript notes, having noted that a return to work appeared unlikely, Dr Jones recorded:-

"1 Letter to division re this - incl: work issues

2 ? injury award - see what div say but in my view would be appropriate"

As already indicated at this stage Dr Jones had received no response respecting the petitioner's allegation that he had been subject to exceptional working conditions. That also applied when he dictated and later signed his letter dated 22 February 2001 (No 7/3 of process) to the Chief Superintendent in B Division in which, having advised that the petitioner would not be able to return to work he said this:-

"Having discussed the background to Constable Grubbs' medical condition with him, it would seem to me that this case will fall into the category of stress related medical problems which inevitably leads to the question of an injury on duty award. I know that in the past the force has been reluctant to recognise that ordinary officers doing ordinary duties should receive such awards, even if the duties are apparently the cause of medical symptoms. My experience of attending appeals in such cases is that it is extremely difficult to defend the decision not to give an award when it is clear that an individual has a medical problem which derives from some aspect of police service whether or not this aspect was in any way unreasonable or the fault of the force itself. I have discussed this issue, in this particular case, with your Personnel Officer who I believe is looking into the background circumstances of the case. Clearly I would await further advice before making a decision regarding an injury on duty award but I have to say that in this case, it is difficult to see beyond granting an award. I will of course be happy to discuss this further with you if this would be of assistance. In the meantime I await your instruction before taking further action".

To that letter the Divisional Personnel Officer responded by a letter dated 15 March 2001 (7/4 of process) in which the writer stated:-

"I note your comments about PC Grubb being unable to return to work and understand the best plan of action will be to retire him on the grounds of ill health. The Division would not oppose this, however we do not believe PC Grubb should be given an injury on duty award.

In our opinion PC Grubb's retiral is not the result of an injury on duty. While it is recognised PC Grubb may appeal should he not be granted an injury on duty award we would defend this decision as we have in previous cases".

Accordingly, when Dr Jones saw the petitioner on 29 March 2001 he had both that letter and the earlier letter of 16 February reporting that, on investigation, the exceptional working circumstances invoked by the petitioner had, according to the Division, been investigated and found not to exist.

[31] In his evidence the petitioner agreed that at the interview on 29 March 2001 Dr Jones reported to him much of the factual assertions of the Division of which he had been told in their correspondence namely that the Division was maintaining that manning was fine and that the petitioner was not overworked. The petitioner said that he was well aware of the Division's point of view. The petitioner deponed that he then gave Dr Jones his viewpoint, namely that the information from the Division was incorrect; and that Dr Jones then explained to him that there was an "impasse". According to the petitioner, Dr Jones indicated that any further effort to resolve the "impasse" would delay the petitioner's retirement and "hold him back"; that the way forward was for him to be retired without an injury award but it might be open to him to appeal the refusal, since that at appeal stage most cases succeeded. But for the Division's opposition, the petitioner was sure that Dr Jones would have given him an injury award. For his part, Dr Jones, in the course of his oral evidence, agreed that he had told the petitioner of the Division's refutation of the contention that the petitioner had been the subject to any exceptional working conditions, and that there was an "impasse" between the two opposing accounts, which was difficult to resolve. Dr Jones accepted that he may not have indicated to the petitioner the identity of the officer within the course of providing the information to him and that he may not have indicated that the information went so far as to maintain that the petitioner had been subject to a lesser workload than his colleagues, his possible unwillingness to disclose the last point being prompted by a concern that it might affect the petitioner in his reaction to his stress condition.

[32] Dr Jones was closely questioned by counsel for the petitioner regarding the terms of his notes and his dictated letters with a view, put shortly, to demonstrating principally that Dr Jones had abdicated all decision power in favour of a direction from the Board and that he had truly decided that the petitioner was entitled to an injury award. Thus the manuscript note of the examination of 20 February 2001, already quoted, was said to suggest that Dr Jones had determined that an injury award was appropriate, subject only to the Division's agreeing with that judgement, in a controlling sense. In my opinion that is to read too much into a hasty note. As Dr Jones explained, he was at that stage sympathetic to the award if the petitioner's account of particular exceptional work circumstances was correct. He was still awaiting what the Division had to say on working conditions. I accept his account of the circumstances of, and the intention behind, that note.

[33] As already indicated Dr Jones remained in that situation when he wrote the letter of 22 February 2001, the material parts of which have already been quoted. Counsel for the petitioner submitted that this letter gave a clear indication that Dr Jones had actually decided that the petitioner was entitled to an injury award but was simply awaiting direction or instruction from the Division. In his evidence Dr Jones indicated that he was endeavouring to explain that it was not enough for the Division to say that they did not like the concept of an injury award in cases of stress or mental disability; they required to be able to supply information which dismissed the applicant's account of a causal link and which would stand up on appeal. His use of the words "advice" and "instruction" truly referred to advice regarding the petitioner's working conditions. Counsel also pointed to the manuscript notes written by the first respondent following his examination of the petitioner on 29 March 2001 in which, having noted that he had received the letters back from the Division and that he had discussed matters with the Division and they were "adamant" contains this passage:-

"Discussed with Mr Grubb. He is positive his medical problems derive from work circumstances. I am sympathetic but have no present way of resolving the impasse. I.H.R. can go ahead. I will advise B Division that it is their responsibility to defend any I.O.D appeal ....."

Counsel further pointed to the letter (7/5 of process) dated 2 April 2001 dictated by Dr Jones following that examination which contains this:-

".. I explained to [the petitioner] that the Division had accepted that he was unlikely to be able to return to his work and retirement on health grounds was accepted. I also explained that the Division were not prepared to grant an Injury on Duty Award. Constable Grubb attributes his medical symptoms to his work and clearly feels this would be appropriate. I am unable to resolve such an impasse and therefore, given that you have the final say, I have indicated on the Certificate of Permanent Disablement that an Injury on Duty Award is not appropriate. I do this in the light of the fact that Constable Grubb may, and probably will, appeal against the decision. In such circumstances I hope that the Division would be able defend the position that the Injury on Duty Award is not appropriate."

Counsel placed particular stress on the phrase "given that you have the final say" as demonstrating that the first respondent regarded himself as entirely subject to Divisional direction. For his part the first respondent sought to explain that phrase by saying that he had reached the view that on the issue of working conditions he had to resolve the impasse by accepting the Division's account.

[34] The principal thrust of Mr Clancy's attack on the decision of the first respondent was to the effect that the first respondent had truly decided, on the basis of all of the information available to him on 29 March 2001 that the petitioner was in fact entitled to the injury award but only declined to make that award on the irrelevant and illegitimate basis that a decision to that effect would not be welcomed by senior officers in the force. On that view of matters, it was said by counsel that the court could order that the petitioner was entitled to the injury award.

[35] I would not have been prepared to accept that particular categorisation of the first respondent's decision. The correspondence and notes, from which counsel for the petitioner sought to draw particular conclusions, have to be viewed in context, and since the petitioner elected to lead the evidence of Dr Jones, they have also to be viewed in the context of his oral evidence. Those contexts include, importantly, the petitioner's assertion to the first respondent that he was subject to exceptional overload at work and especially his attribution of his disability to those exceptional conditions following on his assignment to duties at Gayfield Square Police Station. Whether the causal link necessary for the allowance of an injury award was established was thus seen by Dr Jones - whose evidence on this matter I accept - as dependant on the existence of those exceptional conditions, being the issue raised by Dr Jones in his letter of 23 January 2001. When he finally gave his decision, Dr Jones had on the one hand the petitioner's continuing assertion that he had been subject to exceptional working conditions, and, on the other hand, the contention from the Division, said to follow from investigation, that no such exceptional conditions - rather the inverse - existed. Accordingly, while the Division were opposed to the allowance of an injury award, that opposition was, in this case, linked with a view of the factual circumstances of the petitioner's conditions of service which was directly contradictory of the petitioner's account. As the first respondent explained, he had no real way of resolving this "impasse". In order to grant the injury award, Dr Jones considered that he would require to reject the account given by a senior officer of the petitioner's working conditions. Perhaps understandably, the first respondent chose not to reject that account from the police force but, also understandably, he did so on the basis that the Division would defend their view of the petitioner's working conditions in the event of an appeal (since, had they not been so prepared, that would be indicative of unreliability in their stated factual position).

[36] Accordingly while some passages in the letters dictated by Dr Jones may tend to give colour to the contention of counsel for the petitioner if taken in isolation, I am satisfied that viewed in the light of the full context, and the oral evidence, the first respondent did not reach a conclusion that, on the basis of all the factual information available to him, the petitioner was entitled to an injury award but perversely declined to make that award by reason of improper, political pressures from the Division. That is not to say that the regulatory framework is wholly satisfactory in itself, nor that the Board sufficiently recognised the need to identify the exercise of its functions under Reg H and the appointment of a "selected medical officer" for those regulatory purposes.

Decision
[37] For the foregoing reasons I shall grant the order sought under paragraph 2(b) of the petition, namely an order reducing the decision of the second respondent of 21 October 2001; and I shall refuse all of the other orders sought by the petitioner.