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Cite as: [2003] ScotCS 294

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Phillips v. Strathclyde Joint Police Board [2003] ScotCS 294 (28 November 2003)

OUTER HOUSE, COURT OF SESSION

P422/02

OPINION OF

LORD DRUMMOND YOUNG

in the Petition of

PETER PHILLIPS

Petitioner;

against

STRATHCLYDE JOINT POLICE BOARD

Respondents:

for

Judicial Review of a decision of a Medical Referee in terms of the

Police Pension Regulations 1987

________________

Petitioner: Clancy, QC; Allan McDougall & Co, S.S.C.

Respondents: Martin, QC, Bowen; E. Bain

28 November 2003

[1] The petitioner was a constable with Strathclyde Police from January 1996 until March 2000. On 9 March 2000 he was discharged from Strathclyde Police on medical grounds, and thereafter applied to the respondents for a police pension, including a policeman's injury award. Such an award may be made in terms of regulation B4 of the Police Pensions Regulations 1987 (SI 1987/257), as amended, "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". Thereafter, the petitioner avers, the respondents referred a number of questions to Dr W.D.S. McLay, the Chief Medical Officer to Strathclyde Police, acting as a duly qualified medical practitioner within the meaning of the 1987 Regulations. Those questions were as follows:

(a) whether the petitioner is disabled;

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

(c) whether that disablement is as a result of an injury received in the execution of the petitioner's duties; and

(d) the degree of the petitioner's disability.

On 9 March 2000 Dr McLay issued a certificate in terms of regulation H1(4) of the 1987 Regulations in which he decided that the petitioner was disabled and that such disablement was likely to be permanent. He did not, however, find that the petitioner was disabled as a result of an injury received in the execution of his duty as a policeman.

[2] The petitioner appealed against Dr McLay's decision that the petitioner was not disabled as a result of an injury received in the execution of his duty as a policeman. That right of appeal, which arises under regulation H2(2) of the 1987 Regulations, is to a medical referee appointed by the Scottish Public Pensions Agency, acting on behalf of the Secretary of State. In the petitioner's case, the medical referee was Dr Colin Crawford, who is called as a respondent to the present petition but has not lodged answers. The petitioner avers that in support of his appeal he submitted a psychiatric report to Dr Crawford. Dr Crawford also received a written report from Dr McLay. On 14 September 2000, Dr Crawford interviewed and examined the petitioner in the presence of Dr McLay. On 15 September 2000, Dr Crawford issued a report to the respondents in which he stated that he agreed with Dr McLay and about the question referred to him on appeal. The appeal was accordingly decided against the petitioner.

[3] Thereafter the petitioner sought and obtained judicial review of Dr Crawford's decision of 15 September 2000. On 17 August 2001, Lord Hamilton granted decree of reduction of Dr Crawford's determination and remitted the case to him for reconsideration and determination in the light of the views on the law expressed in the accompanying opinion. Consequently question (c), whether the petitioner's disablement was as a result of an injury received in the execution of his duties, was remitted to Dr Crawford for reconsideration and determination. By agreement between the petitioner and the respondents Dr Crawford was also asked to consider question (d), the degree of the petitioner's disability, in the event that he decided question (c) in the petitioner's favour.

[4] The petitioner avers that he has been unfit for any employment since a time before he retired from Strathclyde Police. When his case was remitted to Dr Crawford, the petitioner submitted a number of medical reports. These included reports submitted to Dr Crawford in connection with the initial appeal and a fresh report from a consultant psychiatrist, a Dr Fowler, dated 27 November 2001. The petitioner also submitted documents from the Benefits Agency to show that he was in receipt of incapacity benefit and had been since before his retirement from Strathclyde Police. The petitioner avers that Dr Crawford did not interview or examine him in connection with his reconsideration of question (c) or his consideration of question (d). On that basis the petitioner avers that there was no material before Dr Crawford which did, or could, suggest that the petitioner is or was at any time since prior to his retirement from Strathclyde Police fit for any form of employment.

[5] On 3 January 2002 Dr Crawford reached a further decision, which was issued on 17 January. In the written statement of his decision, he wrote:

"Lord Hamilton conducted a Judicial Review of this case and instructed that I reconsider. I have subsequently received further submissions from Mr Phillips' solicitor, including a report by Dr D.B. Fowler. ... As instructed by Lord Hamilton, I have reconsidered the case. I believe that Mr Phillips has suffered an injury for loss of earning capacity of 25%".

I should add that 25% is categorised as slight disablement for the purposes of a policeman's injury award, and entitles the individual concerned to such an award at the lowest available level.

[6] The petitioner now seeks judicial review of Dr Crawford's decision of 3 January 2002. In particular, he seeks reduction of the decision, declarator that he is entitled to an injury award under the 1987 Regulations and an order that the Scottish Public Pensions Agency appoint a medical referee other than Dr Crawford to consider and determine the petitioner's appeal against the decision of Dr McLay. At the first hearing of the petition for judicial review, counsel for the petitioner advanced detailed arguments in support of his client's case; these are summarised below. In presenting these arguments, counsel made substantial reference to the productions in the case. A number of those productions, including some that were clearly critical to the development of the petitioner's argument as presented in court, had been lodged only on the day of the hearing or on the previous day. When he came to address me counsel for the respondents submitted that the petitioner's arguments went substantially beyond the legal arguments set out in the petition itself. He further stated that, in view of the late productions, he required to investigate the facts of the case further, and was accordingly not in a position to respond to the petitioner's submissions. Counsel nevertheless invited me to determine a question as to the competency of the petition, namely whether the existence of a right of appeal to the sheriff under regulations H3(1) and H5 rendered judicial review incompetent. He addressed me on that issue, but not on the merits of the petitioner's argument. When he replied, counsel for the petitioner did not accept that his argument had gone beyond the argument stated in the petition, and he submitted that the respondents were not prejudiced by the further productions that had been lodged.

[7] In my opinion the arguments presented on behalf of the petitioner went beyond the arguments outlined in the petition in certain significant respects. They were also heavily reliant on documents that had only been lodged immediately prior to the date of the first hearing. In the circumstances, I am of opinion that counsel for the respondents was justified in stating that he required to conduct certain further investigations and was unable to reply immediately to the argument for the petitioner. For this reason I will not deal with the merits of the petition in this opinion, beyond setting out the argument presented for the petitioner and stating why I consider that it goes beyond anything foreshadowed in the petition. I will, however, deal with the issue of competency raised on behalf of the respondents, which was fully argued.

[8] In the petition, the grounds on which the petitioner seeks judicial review are stated as follows:

"14. In purporting to decide the questions before him the second respondent [Dr Crawford] has erred in law. He has failed to decide question (c). Esto he has decided question (c) in favour of the petitioner he has failed to comply with Regulation H2(3) by issuing his decision in the form of a certificate disagreeing with the decision of Dr McLay as the duly qualified medical practitioner. Separatim in determining question (d) he has failed to apply the test set out in Regulation A12(3) of the 1987 Regulations.

15. The second respondent's decision on question (d) is irrational and wholly unreasonable. The second respondent must have failed to give proper consideration to the medical reports and documents from the Benefits Agency submitted to him on behalf of the petitioner. These reports and documents clearly establish that the petitioner is and has been unfit for any employment since prior to his retirement from Strathclyde Police. The second respondent was not in a position to gainsay or disagree with that fact because he did not interview or examine the petitioner in connection with question (d). He did not have any other relevant material before him which disputed or called into question in any way the fact that the petitioner was and remains unfit for any form of employment".

Regulation A12(3), which played a significant part in counsel's submissions, is in the following terms:

"Where it is necessary to determine the degree of a person's disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force".

[9] The submissions advanced at the first hearing by counsel for the petitioner were as follows:

1. When Dr Crawford's notes were compiled in 2000, he was not addressing question (d). That appeared from his original letter of appointment by the Scottish Public Pensions Agency (a document lodged in process the day before the hearing). That letter only related to question (c).

2. There had in any event been a significant time gap between Dr Crawford's original meeting with the petitioner in September 2000 and the decision that he ultimately reached on question (d). All that Dr Crawford had to go on in September 2000 appeared to be a brief reference to job applications that had been made by the petitioner; that appeared from a letter that he had written to the petitioner's agents in May 2003 (and which had been lodged in process the day before the first hearing). Moreover, in Dr Crawford's notes from his interview in September 2000 (another document lodged the day before the first hearing) there was no record of specific job applications, or what the petitioner could hope to earn if he were successful with such applications. Nor was there any information as to the outcome of the job applications. The result was that Dr Crawford was unable to apply the test set out in regulation A12(3), as he had no material on which to estimate the amount that the petitioner might be expected to earn in alternative employment.

3. Dr Crawford's decision issued in January 2003 was not informed by the fresh material made available by the petitioner for the purposes of the second consideration of his case; that material included a further psychiatric report and material from the Benefits Agency. The basis on which this statement was made was two letters from Dr Crawford, one dated 12 May 2003 addressed to the petitioner's solicitors and one dated 9 April 2003 addressed to the Strathclyde Joint Police Board. These letters were lodged in process respectively on the day before the first hearing and the day of the first hearing. It is on the basis of these two letters that counsel for the petitioner was able to say what material Dr Crawford had taken into account in reaching his second decision.

4. Dr Crawford's decision issued in January 2003 was irrational. He had accepted that the petitioner was totally disabled from working as a police officer, and that in September 2000 the pursuer was still suffering from serious mental health problems. He had material from the Benefits Agency that the pursuer was unfit for any form of work. He had not made any assessment of what the petitioner might have earned if alternative employment had been available. The cumulative effect of these was the Dr Crawford's decision was so irrational that it was amenable to judicial review.

5. In Dr Crawford's letter of 9 April 2003 addressed to the Police Board, in which he set out the basis for his decision, he stated that he had applied guidelines that he had received from the Scottish Public Pensions Agency. It was clear, however, that he had not done so. Those guidelines amplify the test in regulation A12(3). Dr Crawford did not have the necessary material to apply the guidelines. (The guidelines themselves had been lodged in process the day before the first hearing).

6. In particular, comparison with earnings in alternative employment was mandatory, but no such material had been obtained to enable the comparison exercise to be carried out. In developing this submission, counsel made detailed reference to the guidelines.

7. Likewise, Dr Crawford had failed to apply the test set out in regulation A12(3), which required a comparison of the amount that an applicant might earn in alternative employment with the amount that he would have earned if he had continued in the police.

[10] While substantial parts of the submissions for the petitioner were prefigured in the petition, it is clear in my opinion that the reliance on the guidelines found in the fifth and sixth heads of the petitioner's argument was new. The guidelines themselves had only been lodged in process the day before the first hearing. Moreover, the documents referred to in the first three heads had only been lodged on the day of the first hearing or the day before. In the circumstances I do not think that sufficient notice was given to the respondents of the petitioner's arguments. It seems to me to be entirely reasonable that the respondents would want to investigate a number of the issues of fact arising out of Dr Crawford's letters of 8 April and 12 May 2003, in view of the significance that they assumed for the petitioner's argument. No doubt the first of those letters was addressed to the respondents, but its full significance cannot be appreciated until it is known what part the letter is going to play in the petitioner's case. It is clear that that part was an important one, but that only became apparent at the first hearing. In the circumstances I think that it is only fair that the respondents should have an opportunity to investigate the factual matters that arise out of the petitioner's argument. For that reason I will not give further consideration to the merits of the petitioner's argument.

[11] There remains the defender's argument based on the terms of regulations H3(1) and H5. These regulations appear in the context of regulations H1 and H2. Regulation H1 is in the following terms:

"(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.

(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:-

(c) whether the disablement is the result of an injury received in the execution of duty, and

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

...

(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".

Regulation H2 provides:

"(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 a certificate ... 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 on 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".

Regulation H3 provides as follows:

"(1) A court hearing an appeal under Regulation H5 ... may, if they consider that the evidence before the medical authority who has given the final decision was inaccurate or inadequate, refer the decision of that authority to him for reconsideration in the light of such facts as the court... may direct, and the medical authority shall accordingly reconsider his decision and, if necessary, issue a fresh certificate which, subject to any further reconsideration under this paragraph, shall be final.

...

(4) In this Regulation a medical authority who has given a final decision means the selected medical practitioner, if the time for appeal from his decision has expired without an appeal to a medical referee being made, and the medical referee, if there has been such an appeal".

In the present case, therefore, the medical authority was the medical referee, Dr Crawford. Regulation H5 provides as follows:

"(1) Where a member of a home police force ... is aggrieved by the refusal of the police authority to admit a claim to receive as of right an award or a larger award than that granted ..., he may, subject to Regulation H7, appeal to the Crown Court and that court, after enquiring into the case, may make such order in the matter as appears to it to be just.

(2) In the case of a member of a Scottish police force, paragraph (1) shall have effect as if any reference to the Crown Court were a reference to the sheriff having jurisdiction in the place where the person concerned last served as such a member".

Regulation H7 states:

"(1) An appeal shall not lie under Regulation H5 ... against anything done by a police authority in the exercise of a power conferred by these Regulations which is expressly declared thereby to be a power which they are to exercise in their discretion.

(2) Subject to Regulation H3(1), in any proceedings under Regulation H5 ... the court ... shall be bound by any final decision of a medical authority within the meaning of Regulation H3".

[12] Counsel for the respondents submitted that the orders sought by the petitioner were for reconsideration of the decision of the medical referee, Dr Crawford. That was possible by means of an appeal to the relevant sheriff in terms of regulation H5. In the circumstances of the present case, the petitioner was able to obtain a review of the medical referee's decision on the merits from the sheriff. This argument had been mentioned in the respondents' answers to the earlier petition, but the matter had not been pressed at the hearing before Lord Hamilton. In any event, the issue in that petition was a matter of law, as Lord Hamilton held, with the result that the right of appeal to the sheriff did not apply.

[13] In my opinion the right of appeal under regulation H5 is only of limited application to the petitioner's grounds of appeal in the present petition. At the outset, however, it is necessary to determine the relationship between regulation H5(1) and regulation H3(1). Regulation H5(1) contains an apparently unrestricted right of appeal; that provision enables the applicant to "appeal" to the sheriff, who may "make such order in the matter as appears to [him] to be just". Regulation H3(1), by contrast, provides that a court hearing an appeal under regulation H5 may remit to the relevant medical authority "if they consider that the evidence before the medical authority ... was inaccurate or inadequate"; that appears to state a much more restricted ground on which the sheriff may act. In the context of an appeal relating to the decision of a medical authority, however, I am of opinion that regulations H3(1) and H5(1) must be placed in the context of regulations H1 and H2. The latter two regulations each end by stating that the decision of the selected medical practitioner or the medical referee, as the case may be, is to be final, subject to the provisions of regulation H3 and, in the case of the selected medical practitioner, regulation H2. That appears to exclude any right of appeal against the decision of the selected medical practitioner or the medical referee except as provided in regulations H2 and H3. The result is that there can be no general right of appeal to the sheriff under regulation H5(1) against a decision of a medical referee; the only ground on which the medical referee's decision can be challenged before the sheriff is that stated in regulation H3(1).

[14] If that is so, an applicant's right of appeal to the sheriff against the decision of a medical referee may only be on the ground that, in the words of regulation H3(1), "the evidence before the [medical referee] was inaccurate or inadequate". Moreover, all that the sheriff may do is to refer the decision of the medical referee back to him for reconsideration in the light of such facts as the sheriff may direct. It is clear from both of these aspects of regulation H3(1) that the ground of challenge must relate to the factual evidence before the medical referee. It must, in addition, be maintained that that evidence was either inaccurate or inadequate. The word "inaccurate" indicates that the evidence presented to the medical referee was wrong in some respect. The word "inadequate" indicates that further evidence is available that was relevant to the medical referee's decision but was not presented to him. If it appears to the sheriff that the evidence before the medical referee was defective in either of those respects, the sheriff is empowered to remit the case to the medical referee for reconsideration and to make directions as to the facts that are to be considered by the medical referee. That indicates that the sheriff must examine the evidence that is available and decide which facts are relevant to the medical referee's reconsideration. The use of the expression "in the light of such facts ... as the court may direct" suggests that the sheriff is intended to make findings of fact which are binding on the medical referee. In one sense that is perhaps surprising, in that the factual issues that a medical referee must determine are predominantly of a medical nature and the referee is clearly intended to use his medical expertise. Against that, however, is the ground for the sheriff's intervention, namely that the evidence before the medical referee was inaccurate or inadequate. If the sheriff is to decide that the evidence was inaccurate, he must clearly determine what the accurate evidence was. Likewise, if he is to decide that the evidence before the medical referee was inadequate, he must determine what evidence was missing from the medical referee's consideration of the case. In these circumstances I consider the conclusion inevitable that the sheriff must make findings in fact, which are binding on the medical referee.

[15] The grounds on which judicial review is sought in the present case are summarised in paragraph [9] above. The first of these grounds does not appear to fall within regulation H3(1); it relates to the terms of the remit to Dr Crawford and not to any issue of fact that might form the subject of an appeal under that regulation. The second ground, on the other hand, does appear to relate to the adequacy of the evidence before Dr Crawford. This ground could in my opinion be the subject of an appeal to the sheriff. The third ground, likewise, relates to the adequacy of the evidence that was available, and could equally form the subject of an appeal in terms of regulation H3(1). The fourth ground, on the other hand, is the Dr Crawford's decision was irrational. That does not relate to the accuracy or adequacy of the evidence, and thus does not appear to fall within regulation H3(1). The fifth and sixth grounds relate to the practical application of the guidelines. Dr Crawford clearly had the guidelines, but the contention appears to be that he did not have sufficient factual material to apply them properly. In part that involves issues of fact when it may be said that the evidence before Dr Crawford was inadequate; on the other hand, it also raises issues about the relevance and proper interpretation of the guidelines, and these do not appear to fall within regulation H3(1). The seventh ground raises a straightforward question of law, namely whether Dr Crawford applied the test in regulation A12(3) properly. In relation to the matters that might form the subject of an appeal to the sheriff, I should add that it seems clear that the respondents are obliged to follow the decision of a medical referee pronounced under regulation H2. It follows that regulation H7(1) has no application to the present case, as there is no discretion vested in the respondents.

[16] It therefore appears that certain of the grounds on which the petitioner seeks judicial review fall within the right of appeal to the sheriff under regulations H3(1) and H5 but others do not, and at least two of the grounds, the fifth and sixth, may be regarded as falling partly within those regulations and partly outwith them. It is clear that there is no benefit to either the applicant or the police authority if a multiplicity of proceedings is required to challenge a medical referee's decision. I am accordingly of opinion that it would not be appropriate to require the petitioner to use the procedures in regulations H3(1) and H5 in respect of the grounds where those regulations apply and a judicial review in respect of the other grounds. Instead, I consider that the grounds on which the decision of the medical referee is challenged should be considered as a whole, and if at least a significant number of those grounds raise matters that are appropriate for judicial review rather than an appeal to the sheriff judicial review is competent in respect of all of the grounds. In my opinion that requirement is clearly satisfied in the present case, in that issues of law and issues of rationality are raised as well as issues that go to the adequacy of evidence. I accordingly conclude that judicial review is competent in the present case.

[17] In the foregoing circumstances I will pronounce an order under Rule of Court 58.9(2) finding that the petition is competent. I will also make an order for further procedure, by adjourning the first hearing to a date to be fixed and by ordering the petitioner to provide further specification in the petition as to the grounds of which judicial review is sought. This part of the order is designed to allow the petitioner to bring his pleadings into line with the submissions that were made in court by his counsel. At the same time, all relevant documents should obviously be lodged. Thereafter, I will permit the respondents to adjust their answers to meet such further specification as is given by the petitioner, and I will allow both parties time to adjust the petition and answers.