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Cite as: [2004] ScotCS 29
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Lothian Borders Police Board, Re Petition for Judicial Review [2004] ScotCS 29 (10 February 2004)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Osborne Lady Cosgrove Lord Kingarth
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P456/02 OPINION OF THE COURT delivered by LADY COSGROVE in the Petition of LOTHIAN & BORDERS POLICE BOARD, established under the Police (Scotland) Act, 1967 (as amended) and the Lothian and Borders Combined Police Area Amalgamation Scheme Order, 1995, and having its headquarters at Fettes Avenue, Edinburgh Appellants; for Judicial Review of a Medical Certificate under Regulation H2(3) of the Police Pensions Regulations, 1987 _______ |
Act: Swanson, Solicitor Advocate; Maclay Murray & Spens
Alt: Hodge, Q.C; Macbeth Currie & Co
10 February 2004
Introduction
This is a reclaiming motion from the decision of the Lord Ordinary (reported at 2003 SLT 1072) in a petition by Lothian & Borders Police Board for judicial review of the decision of Dr Colin Crawford, a medical referee. The medical referee certified, for the purposes of a claim under the Police Pensions Regulations 1987, that a police constable, Ms Louise Ward, who had been discharged from the force on medical grounds, was permanently disabled as a result of an injury she sustained in the execution of her duty. The Lord Ordinary refused the remedy of reduction of the medical certificate sought in the petition.
The circumstances giving rise to the petition for judicial review were as follows. Ms Ward served as a police officer with the petitioner from about 1989. 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 about 18 May 2001, Ms Ward was medically retired from the police on grounds of depression. The question then arose as to her pension entitlement under Regulation B4 of the Police Pensions Regulations 1987 ("the Regulations"). Regulation B4 applies to a "person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty".
Regulation A11 provides:
"(1) A reference in these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable...
Regulation A12 provides:-
"(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 the 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 .....".
Part H of the Regulations provides that the question whether a person is entitled to any and, if so, what award under the Regulations shall be determined in the first instance by the police authority. Regulation H1(2) provides that 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.......".
In May 2001 the Police Board made a referral to a medical practitioner who decided that Ms Ward was permanently disabled. He also decided that such disablement was not the result of an injury received in the execution of duty.
Ms Ward gave notice to the police board that she was appealing against that decision, as she was entitled to do under Regulation H2. In terms of that Regulation the Secretary of State appointed Dr Colin Crawford, a consultant psychiatrist, as a medical referee to decide the appeal. Dr Crawford interviewed Ms Ward and heard submissions from both parties. He then issued a certificate dated 11 March 2002 in terms of Regulation H2(3). That certificate stated that Ms Ward was disabled from performing the ordinary duties of a member of the police force and that her disablement was likely to be permanent. It also stated that the permanent disability was depression and that the condition was the result of an injury received in the execution of duty. The loss of earning capacity as the result of the injury was 30%. Dr Crawford also issued on 14 March 2002 a determination in the form of a report in which, after a narrative and description of Ms Ward's police career and his findings on examination, he expressed the following "Conclusions":
"There is no dispute 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 that arose out of 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 distress that ultimately she was unable to resume her career."
The stresses experienced at work to which Dr Crawford apparently refers are described earlier in his report as follows. "She began operating as an acting police sergeant in 1996. In 1999 she had a period operating as an acting police sergeant but by October 1999 there was an unusual situation where four people were able to operate as acting police sergeants. It was decided that a rota would be drawn up with each of them working for three months in this capacity. 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"
We observe that the first sentence of Dr Crawford's "Conclusions" does not accurately reflect the situation at the time when the referral was made to him. Parties were agreed, however, that "dispute" should be read as "doubt". We also observe, in relation to the comments that follow, that it was no part of Dr Crawford's function as medical referee to comment on the dispute about the appraisal or to consider issues of blame on the part of the police board, these being irrelevant in the context of the Regulations. On the other hand, the specific purpose of the referral to him was that he should express his medical opinion, as a consultant psychiatrist, as to the cause of the permanent disablement and whether that was the result of an injury sustained in the execution of duty. In our view, Dr Crawford's medical conclusion on these matters is less than completely clear.
It was a matter of agreement both before the Lord Ordinary and this Court that Ms Ward suffered from depression and that that depression amounted to permanent disablement for the purpose of the Regulations. The Lord Ordinary considered that the only fair reading of Dr Crawford's narrative of her history was that he had concluded that both the stresses experienced by Ms Ward prior to going off work and the subsequent refusal of a move from Drylaw played a substantial part in producing her eventual depression. At the hearing before us Mrs Swanson, solicitor advocate for the appellants, expressly conceded that that was a conclusion the Lord Ordinary was entitled to reach on a fair and proper construction of Dr Crawford's report as a whole. In view of the lack of clarity in his report to which we have referred, we were more than a little surprised by that concession. Had we been required to reach a decision on the matter, we would have been inclined to the view that Dr Crawford's considered conclusion as to the cause of Ms Ward's permanent disability is to be found in his "Conclusions" and, in particular, in the last sentence: "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." We note that no specific view is expressed by him as to whether the injury then sustained was, or could be said to have been, received "in the execution of duty". However, since that part of the Lord Ordinary's construction of the referee's conclusion was not challenged, we must decide this case on the sole issue that was focused in the argument before us, namely whether the Lord Ordinary erred when he concluded (para. 11) that the referee was entitled to hold that "the stresses experienced while Ms Ward was still at work as a police officer were sustained in the execution of her duty as a police constable."
Parties were at one that the test for determining whether an event occurred "in the execution of duty" was as stated in R (Stunt) v Mallett [2001] ICR 989 ("Stunt") and R v Kellam Ex p South Wales Police Authority [2000] ICR 632("Kellam") . The Master of the Rolls at para 56 in Stunt observed that a common element in which the injury was held to have been sustained "in the execution of duty" was that -
"An event or events, conditions or circumstances impacted directly on the physical or mental condition of the claimant while he was carrying out his duties which caused or substantially contributed to physical or mental disablement."
Simon Brown LJ (at para. 32) adopted the expression "the fulfilment or discharge of a function or office" as the apt meaning of "execution" in the context of "the execution duty by a person holding the office of constable".
Simon Brown LJ went on to express the opinion that the earlier cases concluding with Kellam were rightly decided "provided only and always that the officer's ultimately disabling mental state had indeed been materially brought about by stresses suffered actually through being at work".
In Kellam Richards J said (at page 645 B-E):
"The causal connection must be with the person's service as a police officer, not simply with his being a police officer .... At the same time, however, 'duty' is not to 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 Reg. v Fagin, Ex parte Mountstephen"
Reference was also made in the argument before us to the Opinion of Lord Hamilton in Phillips v Strathclyde Joint Police Board 2002 SLT 1271 and in Lothian & Borders Police Board v Clarke, Scot Courts Website (22 January 2002).
We consider that the principles to be drawn from Stunt and Kellam and the other authorities mentioned and approved in these cases, applicable to the issue that arises in this case, are as follows. The person's injury must be "directly and causally connected with his service as a police officer" (Huddersfield Police Authority v Watson [1947] K.B.842). The test of causation is not be applied in a legalistic way and falls to be applied by medical rather than legal experts (Kellam). What is important is the existence of a "substantial causal connection between the injury and the person's service as a police officer" (Kellam). The words "in the execution of duty" are to receive a benevolent interpretation (Garvin v London (City) Police Authority [1944] K.B. 358). "Duty" relates to the officer's "work circumstances". The injury must have been caused through actually being at work as a police officer (Kellam). The circumstance that a particular constable is more vulnerable than the generality of his colleagues to injury (whether that is a physical vulnerability or mental vulnerability by reason of having, for example, an "egg shell" personality) does not preclude that constable from obtaining an injury award. (R v Fagin Ex p Mountstephen [1996] CO/92/95).
In support of her submission that the medical referee's letter should be reduced, Mrs Swanson argued that he had not correctly applied the test as to the causative link that must be shown to exist between the injury suffered and the permanent disability. The Lord Ordinary had erred in failing to hold that the medical referee's decision that Ms Ward's disability was the result of an injury received in the execution of her duty as a police officer was unlawful and unreasonable. The letter did not contain sufficient evidence of events prior to Ms Ward going off sick to justify the conclusion that her depressive illness was an injury received in the course of her employment. In particular, the appraisal process should not have been considered as part of the "work circumstances". It was a process that was extraneous to an officer's duties. It was important not to stretch the interpretation of the Regulations beyond the boundaries established in Kellam. The expression "work circumstances" used by Richards J, and originally to be found in a medical certificate in Fagin, should not be taken out of context and given a wider meaning than intended. Reference was made to the case of Clinch v Dorset Police Authority [2003] EWHC 161 where a psychiatric condition was caused by a person's disappointment at repeated failures to obtain promotion. It was held that the relevant events impacted on the officer's condition not while carrying out his duties but when, having sought to obtain other duties, he was disappointed in not being given these. The injury derived simply from "being a police officer", and on any ordinary meaning of the Regulations, that did not amount to an injury received in the execution of duty. Mrs Swanson submitted that the same view should be taken of the appraisal process. That was a manifestation of the relationship between the officer and the force, and while it was part of the framework of his duties, it was extraneous to the carrying out of these. Mrs Swanson accepted that Ms Ward's perception of having been marginalised at work was a matter that arose in the course of her employment; but, considered on its own, that would not be a sufficiently material causative factor. Further, the eventual refusal of a move occurred only after Ms Ward had gone off sick and accordingly ought to have been left out of account in considering the effect of events that had occurred while she was at work. In short, Mrs Swanson's submission was that this Court should hold that the prior stresses either ought not to have been categorised as occurring in the execution of duty, or were of insufficient weight to have contributed substantially to the overall injury; and what occurred after May 2000 ought to have been left out of account.
Mrs Swanson's initial submission was that the effect of the referee's apparent finding that both the stresses experienced at work and the subsequent refusal of a move from Drylaw had, in combination, caused the injury was that, if either factor was to be left out of account, it would be impossible to conclude that the remaining factor had produced permanent injury. However, she later departed from that position and conceded that if Ms Ward's condition was found to have been caused by a number of factors, each playing a material part, a finding that any one of these occurred in the execution of her duty would be sufficient for the application of Regulation A11.
For the respondent, Mr Hodge, QC submitted that Dr Crawford's conclusion as to the existence of a substantial causal connection between the circumstances to which Ms Ward was exposed in the carrying out of her duties and her injury contained no error in law, nor was it unreasonable or irrational in any way. In particular, the steps leading up to and including the appraisal process should be treated as arising in the execution of the constable's duties. It was evident from the concluding paragraph of his letter that Dr Crawford had found a chain of causation in which the stresses to which Ms Ward was exposed continued in an escalating process. In that context, her application for a move was explicable because she perceived the return to Drylaw as intolerable on account of what she had experienced there before she went off work. It was not possible to separate the reluctance to go back to Drylaw from what had previously occurred there. While it was not suggested that the refusal of a move was an event that occurred while she was at work, the resulting distress was casually referable to the work circumstances. It was the final factor in the chain of causation and ought not to be excluded from consideration.
Mr Hodge further submitted that, on a proper understanding of the authorities, steps leading up to and including the appraisal process are to be regarded as events occurring in the execution of duty. The appraisal process was quite different from an application for promotion, which was something undertaken at the officer's own initiative. Reference was made in this connection to Regina v Court CO 3498/93, where the medical referee expressed the view that the phrase "while on duty" appeared to "cover all events occurring during the time spent on duty, including ... the receipt and scrutiny of documents such as performance appraisals", and where it was decided that no error of law by the medical referee was disclosed. In any event, the dispute over the appraisal process was only one of the factors causing distress during the period Ms Ward was at work. The authorities did not support compartmentalisation of the various contributory factors, and a perception of marginalisation was of itself a sufficiently significant factor.
The Decision
In the case of Stunt the event giving rise to the officer's psychiatric injury was his exposure to disciplinary proceedings. The Court held that, although police officers ran a particular risk of such proceedings by the very nature of their office, if injury resulted from subjection to such proceedings, it was not suffered "in the execution of duty" but rather from the officer's status as a constable - from his being a police offcer.
The Lord Ordinary decided that the appraisal process ought to be distinguished from disciplinary proceedings which were essentially extraneous to a police constable's duties. An appraisal, by contrast, involved an examination of the general manner in which the constable had been performing his or her duties, and was likely to include recommendations that had a bearing on the future progress of the officer's career. That process was, in his view, closely bound up with the officer's "work circumstances."
As we understand the situation, the appraisal process is one that is carried out in respect of all police officers by a senior officer. The expectation is that that will be done on an annual basis, and that the officer will react in the future performance of his duties to the assessment that is made of the way he is perceived to have been performing during the past year.
We have reached the view, applying the principles to which we have referred, that the appraisal process can properly be distinguished from disciplinary proceedings and also from the situation in which an officer has applied for promotion. Neither of these situations is directly concerned with a person's service as a police officer. The appraisal process, on the other hand, is an event experienced by an officer through actually being at work and is, in our view, essentially and inextricably linked with the performance by him of his duties as a police officer. Richards J in Kellam (at page 645) said that it is "sufficient 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". We agree with that view. It was what was done by way of delaying the process and what was communicated to her by her senior colleague in the course of it that caused Ms Ward distress. These were events that occurred as part of, and not in any way extraneous to, her "work circumstances".
We find support for the view we have reached from the apparent acceptance by McCowan L.J. in Court (supra) of the medical referee's view to which reference has been made. (We further note that that view was specifically referred to in Kellam without adverse comment).
As we understood her submissions, it was not disputed by Mrs Swanson that the events surrounding the appraisal process taken together with the officer's perception of marginalisation substantially contributed to the stress she suffered which led to her depressive illness and permanent injury. It was also conceded that the perceived marginalisation was an event that occurred as part of the work circumstances. It follows from the view we have reached about the appraisal process, that we find that the Lord Ordinary did not err in concluding that the referee was entitled to decide that the injury sustained by Ms Ward was received in the execution of her duty as a police officer. The reclaiming motion is accordingly refused.