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Cite as: [2004] ScotCS 142

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Phillips v. Strathclyde Joint Police Board [2004] ScotCS 142 (15 June 2004)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Kirkwood

Lord McEwan

P422/02

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK

RECLAIMING MOTION BY THE RESPONDENTS

in the Petition of

PETER PHILLIPS

Petitioner and Respondent;

against

STRATHCLYDE JOINT POLICE BOARD

Respondents and Reclaimers;

for

Judicial Review of a decision of a Medical Referee in terms of the Police Pension Regulations 1987

_______

For Respondents and Reclaimers: Anderson QC, Bowen; Edward Bain, Solicitor

For Petitioner and Respondent: Hodge QC; Allan McDougall, Solicitors

15 June 2004

Introduction
[1] The petitioner was a constable in Strathclyde Police until 9 March 2000 when he was discharged from the force on medical grounds. He applied for a police pension, including a policeman's injury award under Regulation B4 of the Police Pensions Regulations 1987 (SI No. 257) (the 1987 Regulations). His application raised the question whether he was permanently disabled as a result of an injury received in the execution of his duties.

[2] The respondents referred a number of questions to their Chief Medical Officer. He issued a certificate dated 13 March 2000 with which the petitioner was dissatisfied. The petitioner appealed to a medical referee. Dr Colin Crawford, a consultant psychiatrist, was appointed as referee. He issued a determination dated 15 September 2000 rejecting the appeal.

[3] The petitioner applied for a judicial review of that determination. By interlocutor dated 17 August 2001 Lord Hamilton reduced it and remitted the case to Dr Crawford for re-determination (cf Phillips v Strathclyde Joint Police Board, 2001 SLT 1271).

[4] Dr Crawford issued a further determination dated 3 January 2002 to the effect inter alia that the petitioner's disability was not sustained as a result of an injury received in the execution of his duties. The petitioner now seeks judicial review of that determination on several grounds, including those of error of law and irrationality.

[5] The respondents took a plea to the competency of the petition. Lord Drummond Young held a first hearing on that question. By interlocutor dated 28 November 2003 he held that the petition was competent and continued it for further procedure. The respondents have reclaimed against that interlocutor.

The statutory framework
[6] The issue in this case depends on the interpretation of Part H of the 1987 Regulations. Regulation H1(2) provides inter alia that where a police authority are considering whether a person is permanently disabled, they shall refer the following questions to a duly qualified medical practitioner for decision; namely (a) whether the person concerned is disabled and (b) whether the disablement is likely to be permanent; and, if they are considering whether to grant an injury pension, shall refer the following further questions, namely (c) whether the disablement is the result of an injury received in the execution of that person's duties and (d) the degree of that person's disablement. All four questions arise in the petitioner's case. Regulation H1(4) provides that the decision of the selected medical practitioner on the questions referred to him shall be expressed in the form of a certificate "and shall, subject to Regulations H2 and H3, be final."

[7] Regulation H2 comes into play when the police authority make a determination in light of the decision of the selected medical practitioner. If the claimant is dissatisfied with the decision and gives notice to the police authority that he appeals against it, an independent "medical referee" must then be appointed to decide the appeal (reg H2(2)). Regulation H2(3) provides inter alia that the decision of the medical referee on the appeal "shall, subject to the provisions of Regulation H3, be final." A selected medical practitioner who has given a decision from which there has been no timeous appeal, or a medical referee, if there has been such an appeal, is referred to as "a medical authority" (reg H3(4)).

[8] Regulation H5 provides inter alia that where a member of a home police force, such as the petitioner, 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 to him,

"he may, subject to Regulation H7, appeal to [the sheriff court] and that court, after enquiring into the case, may make such order in the matter as appears to it to be just."

Regulation H3(1) provides inter alia that a sheriff 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 ... " (reg H3(1)).

[9] Regulation H7, which is headed "Limitation on appeals," provides inter alia as follows.

"(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."

The decision of the Lord Ordinary
[10] The question before the Lord Ordinary, as before this court, was whether the petitioner's challenge to the decision of the medical referee was one that he could have presented by way of an appeal to the sheriff under regulation H5 (supra). The parties agree that, if it was, the remedy of judicial review is not open to the petitioner (Tarmac Econowaste Ltd v Assessor for Lothian, 1991 SLT 77, at pp 78K-79J).

[11] The Lord Ordinary was of the view that the right of appeal to the sheriff under regulation H5 was available only on the ground that the evidence before the medical authority who gave the final decision was inaccurate or inadequate (Opinion, paras [13] and [14]). He considered that the grounds of the petition based on error of law and irrationality did not fall within the scope of an appeal to the sheriff; but that the other grounds did. It would not be appropriate to require the petitioner to use the procedures in regulations H3(1) and H5 in respect of the latter grounds and to seek judicial review in respect of the former. The grounds on which the decision of the medical referee was challenged should be considered as a whole. If at least a significant number of those grounds raised matters appropriate to judicial review rather than to an appeal to the sheriff, judicial review was competent in respect of all of the grounds (para [16]).

Submissions for respondents
[12] Counsel for the respondents submitted that the refusal of the respondents to admit the petitioner's claim triggered an unrestricted right of appeal to the sheriff under regulation H5 and that in that event the sheriff had the wide power to make such order as appeared to him to be just (reg H5(1), (2)). The Lord Ordinary had erred in his construction of regulation H3(1) by concluding that it defined the extent of the sheriff's powers. It set out only one disposal of many that were open to the sheriff as a result of the breadth of the right of appeal. Regulation H7(1) excluded a right of appeal under regulation H5 against anything done by a police authority in the exercise of a power conferred by the regulations that was expressly declared to be discretionary. Decisions on the four questions remitted to the medical authority under regulation H1(2) were outwith the discretion of the police authority. It followed that the issues raised by the petitioner could have been raised in an appeal to the sheriff under regulation H5.

Submission for the petitioner
[13] Counsel for the petitioner submitted that the Regulations did not create a general right of appeal against the decision of the medical authority. The decision of a selected medical practitioner on the questions referred to him was final "subject to Regulations H2 and H3" (reg H1(4)); that is to say, subject to there being an appeal to the medical referee (reg H2) or a reference back to the medical authority for reconsideration of the decision on the basis that the evidence before him had been inaccurate or inadequate (reg H3(1)). If there was an appeal to a medical referee, his decision was final "subject to the provisions of Regulation H3" (reg H2(3)). The conclusive provision was regulation H7(2). It provided that, subject to any reference back by the sheriff under regulation H3(1), in any proceedings under regulation H5 the court was bound by any final decision of a medical authority. The finality of the medical determination excluded any statutory right of appeal on that question; but it did not exclude the right to a judicial review (R v Medical Appeal Tribunal, ex p Gilmore, [1957] 1 QB 574; Sangha v Home Secretary, 1997 SLT 545). The respondents' point had not been taken before in any case under these regulations (eg R v Mallett, ex p Stunt, (2001) ICR 989; R v Fagin and Travers, ex p Mountstephen, (1996) CO/92/95).

Decision
[14] The point now taken by the respondents has not before been taken in any of the cases on Part H and we think that it is unsound. In the previous petition for judicial review in this case (Phillips v Strathclyde Joint Police Board, supra) the respondents pled the point, but counsel did not insist in it at the hearing (ibid, at para [7]). We think that he was right not to do so.

[15] We are broadly in agreement with the Lord Ordinary, but we are not convinced that he was right in thinking that the question specified in regulation H3(1) is the only question that can be taken in an appeal to the sheriff under regulation H5. The right of appeal conferred by regulation H5 is not a right of appeal against the decision of the medical authority. It is a right of appeal against the decision of the police authority on the claim. It may be that there are other questions that can be taken in such an appeal; for example, where, having received the decision of the medical authority, the police authority fail properly to give effect to it in making their award. Moreover, although the question for the medical authority under regulation H1(2)(c) is whether the disablement is the result of "an injury received in the execution of duty," the question for the police authority is whether the disablement is the result of "an injury received without his own default in the execution of his duty" (reg B4(1)). It may be, therefore, that a decision of the police authority on the question of the claimant's default could result in their refusal to admit the claim, in which event it would seem that there would be a right of appeal under regulation H5(1).

[16] That is a point that we do not have to decide on this occasion. It is sufficient to say that in our view the challenge to the decision of the medical authority in this case is not one that could have been taken by way of an appeal under regulation H5. The submission for the respondents overlooks the significance of regulation H7(2), the clear meaning of which is that, in any appeal to the sheriff, the final decision of the medical authority on each of the matters specified in regulation H1(2)(a) to (d) is binding on the court. The court therefore cannot enquire into the merits of that decision, which is a decision on specialist medical questions, except to the extent that it may refer the decision back to the medical authority for reconsideration if the specific and limited ground set out in regulation H3(1) is made out.

[17] That conclusion is consistent, in our view, with the scheme of Part H, which appears to rest on the finality of the medical authority on the specialist questions on which a claimant's entitlement will depend and admits of only one limited ground on which the court can intervene in such matters.

[18] That, in our view, is a satisfactory conclusion. It would be surprising if the administrative decision of a police authority that depends on a prior determination of specialist medical matters should be the subject of an open appeal to the sheriff that covered all aspects of the decision, including that determination.

[19] On the view that we have taken of the Regulations, it follows that the petitioner's challenge to the validity of the decision of the medical authority is not precluded by the existence of any statutory ground of appeal.

Disposal
[20] We shall therefore refuse the reclaiming motion and return the case to the Lord Ordinary to determine the merits of the petition.