Scottish Court of Session Decisions

Lothian & Borders Police Board, Re Petition for Judicial Review [2003] ScotCS 51 (26 February 2003)

OUTER HOUSE, COURT OF SESSION
P456/02	OPINION OF LORD DRUMMOND YOUNG in Petition of LOTHIAN & BORDERS POLICE BOARD for Judicial Review of a Medical Certificate under Regulation H2(3) of the Police Pension Regulations 1987   ________________

 

 

Petitioner: Glennie, Q.C.; Maclay Murray & Spens

Respondent: Hodge, Q.C.; Macbeth Currie & Co

26 February 2003

1. The petitioner, Lothian & Borders Police Board, is a police authority under the Police Pensions Regulations 1987. It seeks judicial review of a decision taken by Dr Colin Crawford, a medical referee acting for the purpose of determining an appeal under the Police Pensions Regulations. That appeal related to the pension entitlement of Miss Louise Ward, who was represented at the hearing of the petition.
2. The circumstances giving rise to the appeal were as follows. Miss Ward served as a police officer with the petitioner. Prior to June 1999 she was stationed at Drylaw Police Station. She became upset following her marking in her annual assessment in March 2000, and because of other difficulties that she was experiencing at work. She challenged her assessment and, because of the stress that she was experiencing, she eventually had to take time off work. She was absent from work from 1 May until 17 May 2000. From 17 May 2000 she was transferred at her own request on a temporary basis to Newbattle Police Station, which was within a different Division. She subsequently went off sick on 23 June 2000 and never returned to her duties. Discussions took place regarding a possible transfer to non-operational duties for a period, but nothing came of these. Ultimately, on 18 May 2001, Miss Ward was medically retired from the police on grounds of depression. The question then arose as to her pension entitlement under the Police Pensions Regulations 1987.
3. The provisions of the Police Pensions Regulations 1987 that are material to the present case are as follows. The basic entitlement to a pension arises under regulation B4, which is in the following terms:

"(1) 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 exercise of his duty...

(2) A person to whom this Regulation applies shall be entitled to a gratuity and, in addition, to an injury pension...".

Regulation A12 provides as follows:

"(1) A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at a time when the question arises for decision and to that disablement being at that time likely to be permanent.

(2)... disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be...".

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...".

Regulation A11 is in the following terms:

"(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...".

Schedule A to the Regulations defines "injury" as including "any injury or disease, whether of body or of mind".

4. The determination of any person's entitlement to a police pension is dealt with in regulations H1 and H2. These provide as follows:

"H1. -- (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".

"H2. --... (2) If the person concerned is dissatisfied with the decision of the selected medical practitioner as set out in his certificate, he may... 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... be final".

5. In May 2001 the petitioner referred the question of whether or not Miss Ward was permanently disabled to a qualified medical practitioner, in terms of regulation H1 of the Police Pensions Regulations 1987. The medical practitioner was asked to consider three questions: whether Miss Ward was disabled; if so, whether such disablement was likely to be permanent; and, if so, whether such disablement was the result of an injury received in the execution of duty. The medical practitioner decided that Miss Ward was permanently disabled, but that such disablement was not the result of an injury received in the execution of duty. That decision was certified on 18 May 2001, and following the certification Miss Ward was retired on grounds of ill health with effect from 18 May 2001. Thereafter, in accordance with regulation H2, Miss Ward gave notice to the petitioner that she was appealing against the decision of the qualified medical practitioner. In due course, in accordance with regulation H2(3), the Secretary of State appointed Dr Colin Crawford as the medical referee to decide the appeal.
6. The appeal was held on 11 March 2002. Dr Crawford issued a certificate dated 11 March 2002 in terms of regulation H2(3). The certificate stated that:

(i) Miss Ward was disabled from performing the ordinary duties of a member of the police force;

(ii) such disablement was likely to be permanent;

(iii) the permanent disability was caused by the condition of depression;

(iv) that condition was the result of an injury received in the execution of duty; and

(v) Miss Ward's loss of earning capacity as a result of the injury was 30 per cent.

Dr Crawford's reasons for the decisions contained in his certificate were stated in a letter dated 14 March 2002 addressed to the Scottish Public Pensions Agency. In that letter, Dr Crawford summarised Miss Ward's police career. He stated that she entered the police in 1989 and passed her examination to become a sergeant in 1993. In 1999 (by which time she was stationed at Drylaw Police Station) she had a period operating as an acting sergeant, but by October of that year there was an unusual situation where four people were able to operate as acting police sergeants at Drylaw. It was decided that a rota would be drawn up with each of them working for three months in this capacity. Dr Crawford continued:

"Ms Ward was unhappy that she was the last at the end of the rota. She also felt that she was increasingly being marginalised at work. She understands that a decision was made that the number of acting sergeants would have to be reduced to two. Ms Ward had an overdue annual appraisal which was eventually completed just prior to her going on holiday. She was extremely disappointed when she was told her overall rating was going to be 5 when in the previous year she had an overall rating of 6. She felt extremely unhappy about this appraisal and challenged it with her Inspector and then later with her Chief Inspector. This whole process was extremely stressful for Ms Ward and eventually she had to take time off work. She was extremely tearful and upset and had major difficulties with her sleeping. She then made a request to her Inspector that she has a move from D Division in order that she might make a fresh start. She was told that this would have to be authorised by her Superintendent. At this time, she was still off work and had decided to stay with her parents for a while. It was when she was on the road to Montrose [where her parents lived] that she called in and 'phoned to find out whether she was getting the move. She was told that her Superintendent had refused to allow her to move to another Division and that she would have to return to Drylaw. As this time she became extremely distraught and could see no way out of her predicament. She talked of suicide and was generally totally inconsolable.... Eventually, Ms Ward went to see Chief Superintendent Cooper who arranged for her to be moved to Newbattle Police Station for six months. Ms Ward did eventually go to Newbattle Police Station and was there for almost a month but was clearly unable to cope and went off sick, I believe, in May 2000. Occupational Health had hoped to eventually rehabilitate her back into work but by June 2001 it became clear that she was not going to be able to return to the police force and she was medically retired on the grounds of depression. Ms Ward had put in a grievance related to her appraisal but felt that this did not have a satisfactory outcome"

Dr Crawford stated his conclusions as follows:

"There is no dispute that Ms Ward has become depressed secondary to stresses that she has experienced at work. This appears to have occurred in someone with no past history of psychiatric disorder and someone who appeared to have a well adjusted pre-morbid personality. The dispute that arose out of the appraisal I feel is very much a matter of opinion and I am unable to comment on that. The dispute about the appraisal escalated and Ms Ward realised that it was making her position in D Division untenable. There appears to have been an opportunity to draw a line under the dispute with her request for a move. This initial request was denied. As I understand it, a move to a different Division is not an uncommon event. That initial decision to deny her a move appears to have caused her so much stress that ultimately she was unable to resume her career".

7. The petitioner now seeks review of Dr Crawford's certificate. At the first hearing of the petition, counsel for the petitioner indicated that only the fourth of Dr Crawford's conclusions was in dispute. The petitioner contends that, in the circumstances of the case, that conclusion was not correct in law. The conclusion in question arises out of the requirement in regulation B4(1) that the person claiming a pension should be "permanently disabled as a result of an injury received... in the execution of his duty". That is expanded in regulation A11, which states that an injury received in the execution of duty means "an injury received in the execution of that person's duty as a constable". Counsel for the petitioner submitted that a distinction must be drawn between an injury received in the execution of a person's duty as a constable and an injury simply connected with a person's being a police officer. In the former case a direct causal connection existed between the injury and service as a police officer. It was only injuries of that character that gave rise to entitlement to a disablement pension. Exposure to appraisal or discipline by a superior officer lacked any direct causal connection with service as a police officer; consequently it did not satisfy regulations B(4)(1) and A11. The decision to refuse Miss Ward a transfer to another police station was made after she had taken sick leave, and was therefore not at work. Consequently it could not be an injury received in the course of her duty as a police officer. Reference was made to R (Stout) v Mallett , [2001] ICR 989 and to Lothian and Borders Police Board, 22 January 2002.
8. Counsel for Miss Ward submitted that the parties, in their submissions to Dr Crawford, had focused on the issue whether there was a substantial causal connection between the circumstances to which Miss Ward was exposed when carrying at her duties and her mental injury. That was the correct test. Against that background, Dr Crawford had taken care in his letter to summarise Miss Ward's career and to record the circumstances which had upset her while she was still carrying at her duties. He had concluded that there was no dispute that Ms Ward had become depressed secondary to stresses which she had experienced while at work. On a fair reading of the letter, Dr Crawford had treated events that occurred before Ms Ward's appraisal, and before she went of work, as contributing to her eventual depression; that was additional to the effects of the subsequent dispute about her appraisal and the refusal to move her to another Division. The chain of causation was a long one, starting with the stresses to which Miss Ward had been exposed while carrying out her duties as a police constable, and had continued with further deterioration after she went off work. Thus her illness was a response to a number of events, which started with stresses while she was still at work. Those stresses had a positive role in what was, eventually, a disabling depression. That could be seen in the fact that she had had to take time of work because of the difficulties that she was experiencing there. Reference was made to R v Kellam ex parte South Wales Police Board, [2001] I.C.R. 632, Phillips v Strathclyde Joint Police Board, 2001 S.L.T. 1271, Lothian and Borders Police Board, supra, R (Stunt) v Mallett, supra, and R. v Fagin, ex parte Mountstephen, 26 April 1996. In the circumstances, it could not be said that Dr Crawford had erred in law.
9. It was agreed between the parties that Miss Ward suffered from depression, and that that depression was capable of amounting to an injury for the purposes of regulation A11; Schedule A to the Regulations defines "injury" as including "any injury or disease, whether of body or of mind". The crucial question is whether that depression was caused to a substantial degree by events that happened to Miss Ward in the execution of her duty as a police constable, in terms of regulation A11(1). Parties were agreed that the test for answering this question was that stated by the Master of the Rolls in R (Stunt) v Mallett, supra (at paragraph 56):

"There is one common element in each case in which the injury was held to have been sustained 'in the execution of duty'. 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".

In R v Kellam, ex parte South Wales Police Board, supra, Richards J. put the matter in slightly more elaborate terms (at 645B-E)

"The causal connection must be with a person's service as a police officer, not simply with his being a police officer... That is inherent in the reference to 'duty' in regulation A11(1) and regulation A11(2)(a). At the same time, however, 'duty' is not be given a narrow meaning. It relates not just to operational police duties but to all aspects of the officer's work -- to the officer's 'work circumstances,' as it was put in R v Fagin, ex parte Mountstephen... I have referred in general terms to the person's service as a police officer because it seems to me to be an appropriate way of covering the point, but the precise expression used is unimportant. In any event it is sufficient in my view to find a causal connection with events experienced by the officer at work, whether inside or outside the police station or police headquarters, and including such matters as things said or done to him by colleagues at work".

That passage was cited with approval by Simon Brown LJ in R (Stunt) v Mallett, supra, subject to the qualification that the officer's ultimately disabling mental state must have been "materially brought about by stresses suffered actually through being at work": [2001] I.C.R. paragraph 34. Richards J. went on to state that it was sufficient that there should be a causal connection with service as a police officer; it was not necessary to establish that work circumstances were the sole cause of the injury. Nevertheless, the causal connection must be substantial: [2000] I.C.R. 645E-H. The test of causation, however, was not to be applied in an over-technical manner: [2000] I.C.R. 644H. In Scotland, the approach taken in both R v Kellam, ex parte South Wales Police Board and R (Stunt) v Mallett was followed by Lord Hamilton in Lothian and Borders Police Board, supra. In my opinion it is the correct basis on which to approach the issue in the present case.

10. In the present case, Dr Crawford's primary conclusion, which is set out in paragraph [6] above, was that there was "no dispute that Ms Ward has become depressed secondary to stresses that she has experienced at work". The meaning of that sentence is in my opinion clear from Dr Crawford's earlier narrative of the facts of the case. In that narrative Dr Crawford took some care to set out the events that had led to Miss Ward's eventual depression. In the first place, he records that she was unhappy to be last in the rota of acting sergeants at Drylaw. He further records that she felt that she was being increasingly marginalised at work. She also appears to have been concerned about her overdue annual appraisal, and Dr Crawford records that she was disappointed at the rating that she obtained. Her concern about the appraisal must obviously be considered against the background that a decision had apparently been made that the number of acting sergeants should be reduced from four to two. Dr Crawford narrates that Miss Ward felt extremely unhappy about the appraisal and challenged it with her Inspector and Chief Inspector. He then states, and in my opinion this is a critical element in his decision:

"This whole process was extremely stressful for Ms Ward and eventually she had to take time off work. She was extremely tearful and upset and had major difficulties with her sleeping".

That passage makes it clear that Miss Ward had experienced stress during the period before she went off work, and that that stress had caused her considerable upset. It is further clear that it was stress experienced at this stage that compelled Miss Ward to take time off work. Thereafter Miss Ward made a request for a transfer, at a time when she was still off work. That request was refused, again at a time when she was off work. Dr Crawford records that at this time Miss Ward "became extremely distraught and could see no way out of her predicament", and "talked of suicide and was generally totally inconsolable". At a later stage Miss Ward did transfer to Newbattle Police Station, but after approximately one month she was unable to cope and went off sick. Ultimately it was clear that she would be unable to return to the police and she was medically retired on the grounds of depression. It is clear that the failure of the move to Newbattle was a result rather than a cause of her underlying depression. It follows that the causes of the depression must be sought in earlier events, namely the stresses experienced while Miss Ward was at work and the initial refusal of a move from Drylaw.

11. It is clear in my opinion that Dr Crawford considered that both of these elements had played a substantial part in producing Miss Ward's eventual depression. I consider that the only fair reading of his narrative of her psychiatric history. I am further of opinion that the stresses experienced while Miss Ward was still at work as a police officer were sustained in the execution of her duty as a police constable. If the test suggested by the Master of the Rolls in R (Stunt) v Mallett is used, a series of events or circumstances, namely her position on the rota, a perception of marginalisation and a disappointing appraisal, impacted directly on Miss Ward's mental condition. It did so while she was carrying out her duties. If the slightly different formulation suggested by Richards J. in R v Kellam, ex parte South Wales Police Authority is used, it is in my view clear that those events or circumstances were concerned with Miss Ward's service as a police officer, not merely with the fact that she was a police officer. They can be described as stresses suffered by her through actually being at work. The rota clearly affected her service directly, and the perception of marginalisation was a reaction to the way in which she was treated in the course of her service. Likewise, the assessment was directly concerned with her service; it was an assessment of her service to date, and would clearly have an important impact on her service in the future. Richards J. makes it clear that the word "duty" is not to be given a narrow meaning, but should be regarded as extending to all aspects of the officer's work. In R v Fagin, ex parte Mountstephen, the expression used was "work circumstances". Both a rota and an appraisal clearly relate to aspects of an officer's work, as does marginalisation of an individual.
12. The conclusion that I have reached is in my opinion in accordance with the substantive decisions in previous cases. In R v Kellam, ex parte South Wales Police Authority, the claimant was retired from the police on the grounds of anxiety and stress. This had a number of causes, namely a stillbirth suffered by his wife, the way in which the police force had treated his wife, who had been a serving officer, his perception of the attitude of his colleagues after his wife had won a case against the Chief Constable, and the investigation of complaints made by his neighbours against him. The medical referee had considered that all of those causes had played a part in the claimant's ultimate condition. Thus the attitude of an officer's colleagues, at least as perceived by that officer, was treated as an event or circumstance suffered in the course of police service. That is in point in the present case. In R v Fagin, ex parte Mountstephen, the claimant had suffered a psychiatric illness as a result of feeling incensed that his work had gone on unacknowledged and was misinterpreted and unused. Brooke J. held that the psychiatric illness was an injury received while the claimant was on duty as a constable, because it arose from the events and stresses at work. In my view exactly the same can be said of the first phase of the injuries suffered by Miss Ward. Until she went off work, the stresses resulted from her work circumstances.
13. In R (Stunt) v Mallett, the claimant had been the subject of a complaint by a person whom he had arrested. As a result he was charged under the police discipline code with making an arrest without sufficient cause. During the investigation the claimant took sick leave, and complained of the stress resulting from the investigation. No further disciplinary action was taken. He was ultimately held to have been disabled by severe depression. An award was refused by both the police doctor and the medical referee, on the basis that the stress and resulting depression were not the result of an injury in the execution of his duty but were caused by the internal police investigation into the claimant's conduct. The Court of Appeal held that that conclusion was correct. The conclusion expressed by Simon Brown LJ (at [2001] I.C.R., paragraph 46) was as follows:

"I cannot... accept the view that if injury results from subjection to [disciplinary] proceedings it is to be regarded as received in the execution of duty. Rather it seems to me that such an injury is properly to be characterised as resulting from the officer's status as a constable -- 'simply [from] his being a police officer'".

The critical point appears to be this, that disciplinary proceedings, although arising out of acts performed in the course of a constable's duties, are essentially extraneous to those duties. They involve the examination of charges against the officer in order to discover whether those charges have been proved. That is an exercise that is quite independent of the duties themselves. An appraisal, by contrast, is not an exercise extraneous to a constable's duties. It involves an examination of the general manner in which the constable has been performing his or her duties, and is likely to include recommendations that have a bearing on the future progress of the officer's career, and the duties that the officer is likely to be required to perform in future. That is closely bound up with the officer's "work circumstances".

14. In Lothian and Borders Police Board, the claimant had been involved in a car chase and arrest. Complaints were made about his conduct at the time, and later that day he was suspended from duty. Subsequently criminal proceedings and disciplinary charges were brought against him. He was acquitted of the criminal charges, and thereafter the disciplinary charges were not proceeded with. He was diagnosed as suffering from depression. The medical findings were that the claimant's depression was not the result of the events surrounding the car chase and arrest, but was the result of his suspension from duty, attendance at court cases, a perceived lack of support from the police force, and the disciplinary proceedings. Lord Hamilton held that, apart from the suspension itself, these matters had occurred when the claimant was not at work. As far as the suspension itself was concerned, Lord Hamilton considered that that was not so much an experience undergone in the execution of duty as one consequential on the individual's being a police officer and in that capacity subject to such procedure. The fundamental point made by Lord Hamilton is perhaps that events that have occurred when an officer has been suspended are unlikely to have happened to him in the execution of his duty. The same is likely to be true in my opinion of events that occur while an individual is on long-term sick leave. That is relevant to the present case, in that the events after Miss Ward went off work are unlikely to be in the execution of her duty. For that reason I have ignored all such events in considering whether the statutory test is satisfied. Suspension itself is in my opinion akin to disciplinary proceedings; indeed, it will frequently be the first stage in such proceedings. It is accordingly something extraneous to the performance of the constable's duties, and is thus not relevant to the test in regulation A11(1). In the present case, however, that has no relevance.
15. In all the circumstances I will refuse the remedy of reduction sought in the petition.