Scottish Court of Session Decisions

"(c) as to the times at which and the circumstances in which members of police forces are or may be required to retire otherwise than on the ground of misconduct".

"The regulations may provide, in relation to questions arising thereunder, for the reference of any such matter as is prescribed, either by the policy [sic] authority or by the court, to a medical practitioner whose decision thereon shall, subject to such rights of appeal as may be provided by the regulations to such tribunal as may be constituted thereunder, be final on the matter so referred".

"A20. Every regular policeman may be required to retire on the date on which the police authority determine that he ought to retire on the ground that he is permanently disabled for the performance of his duty:

Provided that a retirement under this Regulation shall be void if, after the said date, on an appeal against the medical opinion on which the police authority acted in determining that he ought to retire, the medical referee decides that the appellant is not permanently disabled".

"B4.-(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 execution of his duty (in Part V of Schedule B referred to as the 'relevant injury').

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

"'injury' includes any injury or disease, whether of body or mind, 'injury received in the execution of duty' has the meaning assigned to it by Regulation A11 and 'the result of an injury' shall be construed in accordance with Regulation A13".

"A11.-(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 and, where the person concerned is an auxiliary policeman, during a period of active service as such.

(2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if -

....".

"A12.-(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 the time likely to be permanent.

(2) Subject to paragraph (3), 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, except that, in relation to a child or the widower of a member of a police force, it means inability, occasioned as aforesaid, to earn a living.

(3) 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:

Provided that a person shall be deemed to be totally disabled if, as a result of such an injury, he is receiving treatment as an in-patient at a hospital".

"A13.- For the purposes of these Regulations disablement or death or treatment at a hospital shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement or death or the condition for which treatment is being received".

"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:-

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

(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-(1) Where a person has been informed of the determination of the police authority on any question which involves the reference of questions under Regulation H1 to a selected medical practitioner, he shall, if, within 14 days after being so informed or such further period as the police authority may allow, he applies to the police authority for a copy of the certificate of the selected medical practitioner, be supplied with such a copy.

(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 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".

"H4. If a question is referred to a medical authority under Regulation H1, H2 or H3 and the person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then -

"(5) Either party may be represented before the tribunal by counsel, by a solicitor or by such other person as appears to him to be appropriate, adduce evidence and cross-examine witnesses.

(6) ... the tribunal shall have regard to the practice of the Crown Court in the case of an appeal under Regulation H5 and the rules of evidence applicable in the case of such an appeal shall apply in the case of an appeal under this Regulation.

(7) Subject to the preceding provisions of this Regulation, the tribunal shall determine its own procedure".

"1. Every notice of appeal under Regulation H2(2) shall be in writing.

2. On receipt of the notice of appeal the police authority shall forward to the Secretary of State 2 copies thereof and of the certificate appealed against, with the name and address of the appellant.

3. A medical referee shall appoint a time and place for interviewing the appellant and for any such further interviews or examinations as he may consider necessary and shall give reasonable notice thereof to the appellant and the police authority.

4. At any time before any interview with the medical referee the appellant or the police authority may submit to the medical referee a statement relating to the subject matter of the appeal, and if they so submit a statement they shall send a copy thereof to the other party.

5. Any interview or examination may be attended by -

6. The medical referee shall give written notice to the police authority and appellant of his decision and, if that decision is that he disagrees with any part of the certificate of the selected medical practitioner, shall send a copy of his certificate to the police authority and the appellant.

7.-(1) The medical referee shall be entitled to such fees and allowances as the Secretary of State may from time to time determine.

(2) The said fees and allowances shall be paid by the police authority and shall be treated as part of the police authority's expenses for the purposes of this Schedule.

8.-(1) Save as hereinafter provided, the expenses of each party to the appeal shall be borne by that party.

(2) Where the medical referee decides in favour of the police authority, the authority may require the appellant to pay towards the cost of the appeal such sum not exceeding the referee's total fees and allowances as the authority think fit.

(3) Where the medical referee decides in favour of the appellant, the police authority shall refund to the appellant any expenses actually and reasonably incurred by the appellant in respect of any such interview or examination as is mentioned in paragraph 3."

"She met her husband in April 1994 when she was working on his shift. Around the same time she met a Police Constable L who she found out did not like her husband and there had been some problem between them before she went on to her future husband shift [sic]. Around August 1994 she found that Mr L made her feel demeaned and useless the whole time that she was working with him. She described his attitude towards her as dreadful and she never felt so small and insignificant in all her life. He found fault with everything that she did irrespective of whether there was a fault or not and he made sure his comments were spread around her colleagues. On one occasion in front of a room full of people, he ripped up a road traffic report that she had completed branding it as shit. He made her repeat the work and with exactly the same contents decided it was acceptable. Every day when she ended up working with him her heart sank and she felt as thoughts [sic] she had been condemned as each time they worked together it was going to be as bad as the last. Because she was a probationer she felt it inappropriate to complain and she hoped that it would stop but it never did.

In September 1994 she talked her Chief Inspector [sic] due to the relationship with Mr McKinlay and her being on the same shift and he arranged for her to be transferred to the Blantyre Station and her confidence returned and she enjoyed her Police duties.

In February 1995 Mr L was transferred to Blantyre. She told her Sergeant about the problems she had had with him before but he did nothing. She discovered later that Mr L and the Sergeant were very good friends and so the bullying continued. She spoke to her friends about Mr L's behaviour and they confirmed that it had happened before but she remained terrified about saying anything because she did not want to rock the boat.

.....

He kept on trying to pick fault with her and as a result she began to have difficulty going to work. She recalled that on one occasion she and another Constable were sent to cover a school crossing but on their way there a woman had reported that her dog had become impaled on a fence and they had to attend to that. When she returned to the station Mr L began to berate her for not carrying out the assigned task. When her colleague who had been with her began to speak up on her behalf Mrs McKinlay broke down.

In the summer of 1995 she went to her Chief Inspector who was well aware of the problem. He consulted the Superintendent and told him all about it. The latter advised her to make a formal complaint but she did not want to do such a thing and cause any further upset. As a result she was moved for a short period of time to Hamilton Sheriff Court and then on to the Larkhall station in December 1995. She felt, however, that she was being victimised in that Mr L was in the wrong and yet he was allowed to remain in his position. In addition he said that he had spoken to colleagues in Larkhall and as a result she was dreading what lay ahead of her. She expected to again be treated badly but was surprised she got on well with everyone. In addition she was told by several people that she should not worry about Mr L as he was just a bit of a bully".

"While she was off on maternity leave she received a succession of telephone calls asking her when she was returning from leave. As a result she returned to Police duties a few months after having the baby rather than the six months she should have had but she had decided that she did not want the additional time off. When she did return to work she found things had changed and with the rest of her colleagues she was made to do compulsory overtime and she said with the problems of changing shifts, she became increasingly preoccupied with the arrangements for looking after her daughter when she was at work.

In June 1998 her left patella popped out and she was off work for a further two months. Again she returned earlier to work than she should have done as she did not want people talking about her abusing the system.

Around January 1999 she became increasingly depressed. She felt the Police did not care that she had a child and continually changed her shifts and made her work overtime. Again she did not want to refuse any such request. Male colleagues told her that they had to accept the duties they were given and so should she.

Approaching the New Years Eve at the millennium she found that she was covering the whole of Larkhall. Around the same time she was injured on duty when someone tried to break her wrist and it was thought that she had a fractured scaphoid and she was off work. Throughout she was advised that it was essential that she attended for millennium New Year duty. On Christmas Day 1999 she went down with influenza but despite this reported for her New Years Eve duty although she felt like vomiting. Throughout the year 2000 she became increasingly more depressed .....

In July 2000 she had an operation [on her shoulder] .... and she was off for seven weeks.... Again she was contacted at home to ascertain when she was returning to work. It was only when the nursing sister from the police came to see her husband in August 2000 that she discovered that Mrs McKinlay was off ill too and that no 28 day report has [sic] been submitted to her. She starting binge eating. As a result she consulted her General Practitioner, Dr Earley in November 2000 but did not want to go off work despite becoming increasingly depressed ....

Eventually on 9 February 2001 she was placed in sick leave [sic] and never returned to her duties thereafter .... No one from the station contacted her and it was only the Nursing Sister from the Police attempted to see her husband [sic] in April 2001 that she discovered that Mrs McKinlay was off ill too.

.....

In September 2001 she saw the Police doctor Dr McLay. He said that she was depressed and referred her to the force psychologist Dr Gray-Taylor. She saw her on one occasion..... She was to have another appointment with Dr Gray-Taylor but had difficulty in finding someone to look after her daughter so could not attend. A third appointment was arranged with Dr Gray-Taylor but she injured herself following a fall down stairs. She was not offered further appointments ......"

"is suffering from a severe agitated depression which fulfils criteria for DSM4 major depression".

"This lady who gives no previous history of psychiatric disturbance of any type has no evidence of any family history of depression has become severely depressed following sustained systematic bullying from a colleague, which has occurred in the course of her duties as a Police Officer. She made various attempts to discuss her problems with Senior Officers who generally offered her little support. Even the one counselling session she had with the force psychologist she did not find particularly helpful. Due to unrelating circumstances [sic] she could not keep two appointments and no further appointments were offered.

It is my opinion that if some type of anti-bullying policy had been in effect with Strathclyde Police and had Mrs McKinlay been given appropriate support by the Police Authorities, it is likely that she would not have become so severely depressed and there is the possibility that she would have been able to continue in her Police career. Not only that, she felt somehow responsible for what was happening to her as she was the one who was transferred out of the Blantyre Station while the bullying perpetrator was allowed to remain where he was.

Mrs McKinlay has now almost developed a phobia with regard to her returning to her Police duties to the extent that when she contemplates such a thing, the intensity of her depression increases. It is my opinion therefore that she is permanently disabled for performing her duties as a Police Officer and she should be retired from the force on health grounds".

"Part of the assessment process, for probationary officers, includes consideration of any welfare issues which may be thought to arise. With reference to the progress reports completed in relation to Constable McKinlay [between September 1993 and September 1995], the only matter which seems to be mentioned under this heading relates to Constable McKinlay's ongoing divorce from her first husband ..... The assessment of her, in those same reports, by her fellow officers (under the heading 'PERSONALITY') seems unremarkable. In the assessments from the Police College the overall conclusions from her Basic course, were that Constable Garden (as she then was) had a lack of self-projection which was hampering her overall effectiveness - though resolutions to that apparent shortcoming were suggested. The assessments from her Advanced course ..... seem more positive though still note a degree of reserve on her part and an invitation for greater enthusiasm.

Likewise, with the assessments from the Force Training Centre ..... Constable McKinlay's performance seems, overall, acceptable and her enthusiasm and enjoyment of her job seems to have been noted by each of her counsellors.

These documents, I would submit, do not reflect the set of circumstances apparently narrated by Constable McKinlay to Dr Stewart ..... It appears that, if anything, it is the ongoing divorce proceedings from Mr Garden which were noted as having some overall effect on her performance ......

The claim made in Dr Stewart's letter that Constable McKinlay moved to Blantyre in September 1994 is not borne out by the papers available to me. The third progress report - said to have been completed on 26 January 1995 - shows her as being at Hamilton Police Office and it is not until the final progress report - completion of which was commenced in August 1995 - that she is shown as working at Blantyre. I am also informed that Constable McKinlay's Personal Record confirms the date of her transfer to Blantyre Police Office to be 20 February 1995.

The account which seems to have been given to Dr Stewart by Constable McKinlay as regards her dealings with Constable L is not, in large part, borne out by the contemporaneous documentation available to me. More particularly, I enclose herewith a report - Appendix 2 - prepared by Inspector W Matheson on 14 November 1995 and completed by Superintendent (now Assistant Chief Constable) Pearson around four weeks or so later .....

Put very broadly, I would submit that the report does reflect some of the difficulties alluded to by Constable McKinlay in her relationship with Constable L. She is said to have described, to Inspector Matheson, conduct of Constable L towards her as a colleague more senior to her in terms of length of service and experience (rather than rank) as 'bullying' and 'oppressive'. Another officer, Constable M, is also said to have described himself as having 'fallen victim' to the way in which Constable L speaks with colleagues.

There is also some mention, in Inspector Matheson's report, of a perception that Constable L and Constable McKinlay's husband (Constable Ian McKinlay) did not get on.

It is also, however, I think worthwhile pointing out that Inspector Matheson's report reflects comments from colleagues which are, broadly, supportive of Constable L's general conduct overall and it is noted that Constable L was regarded as a successful supervisor for other female officers.

It appears, from the report, that an incident involving her being asked to carry out road crossing patrol duties, said to have arisen on 3 November 1995, was the 'catalyst' at least insofar matters coming to the attention of Inspector Matheson were concerned. Notwithstanding the suggestion in Dr Stewart's letter that it was only Constable L who 'upbraided' Constable McKinlay in connection with this incident, Inspector Matheson's report reflects there to have been another officer who had spoken to Constable McKinlay about her late arrival at her assigned place of duty and that Constable L then raised the matter subsequently with her. It does not, however, appear that Constable McKinlay has raised any complaint either then, or now, about having been 'taken to task' by this other officer. It is somewhat difficult, in all the circumstances, then, to see Constable L also raising the matter with Constable McKinlay as part of any sort of course of 'bullying' by him towards her.

It is suggested, in .... Dr Stewart's letter, that Constable McKinlay's move to Larkhall Police Office resulted in her feeling victimised. Inspector Matheson's report, however, suggests that a move away from Blantyre was in fact proposed by Constable McKinlay herself.

It is also, I think, significant that Inspector Matheson's report reflects both himself and Sergeant Docherty, at apparently different times, as having spoken with Constable McKinlay before 3 November 1995 and enquiring as to whether she had any difficulties either specifically in working with Constable L, or more generally, and both appear to have been informed that there were none.

In the appendix prepared by Superintendent Pearson to Inspector Matheson's report, you will note that Constable L was counselled by the Superintendent and left in no doubt as to how his reported conducted was perceived. He was moved to another Group.

It is also, I think, of significance that, in her discussion with Superintendent Pearson, on 14 November 1995, Constable McKinlay expressed her satisfaction with the actions he had taken and acknowledged that Constable L's conduct towards her was similar to that displayed by the said officer to his other colleagues. It is also, I think, significant in terms of what Constable McKinlay has described to Dr Stewart as having happened to her subsequently, that Superintendent Pearson counselled her to ensure that she raised similar issues in the future for the attention of her immediate supervisors to enable early resolution of same".

"The contention that Constable McKinlay received 'a succession of telephone calls' whilst on maternity leave is not one I am in a position to confirm or refute. All other things being equal, I see no reason why Constable McKinlay's colleagues and supervisors should not make contact with her while she was on maternity leave and, in the course of any conversations they may have had with her, enquire, amongst other things, as to her intended date of return. What does, at least, appear clear is that periods of maternity leave which Constable McKinlay proposed to take in her report of 8 April 1997, viz commencing on 27 September 1997 and concluding on 4 January 1998 are confirmed, in her Personal Record, as being the actual period of her maternity leave. There is no suggestion, either, that Constable McKinlay was not able to take the further period of annual leave, and rest days, she had asked for - bringing about her actual return to duty on or about 23 January 1998. The basis for Constable McKinlay's belief, or contention, that she was in some way deprived of a lengthier period of maternity leave to which she appears, now, to believe she was entitled, is not borne out by the contemporaneous records.

In ....Dr Stewart's letter, he narrates having, apparently, been told by Constable McKinlay that in June 1998 her left patella popped out and she was off work for a further two months. According to the contemporaneous absence management record - a copy of which is enclosed herewith as Appendix 4 - Constable McKinlay was off between 8 September and 3 November 1998 with an injury to her knee which is described as 'damage to a ligament arising whilst on holiday'. It is difficult for me to offer any comment on Dr Stewart's remark that Constable McKinlay returned earlier than she should have done because she did not want people talking about her abusing the system. Other than Constable McKinlay being reminded to submit medical certificates timeously, there is no suggestion, in the absence management report, that Constable McKinlay's period of absence was regarded as in any way remarkable and, in any event, notes that she returned to perform light duties for a period of three to four weeks, at the conclusion of her period of sickness absence, while she was continuing to receive physiotherapy. There is no suggestion that Constable McKinlay returned to duty other than in circumstances when her General Practitioner had certified her as fit to resume work.

There is then a reference, in Dr Stewart's letter, to Constable McKinlay saying she became increasingly depressed around January 1999 and to her perception that the police did not care about her. This does not appear to be reflected in the contemporaneous appraisal reports completed in relation to Constable McKinlay from and after the time that she was assigned to work at Larkhall ...... In particular, the Referee's attention is drawn to the appraisal for 1998 which notes Constable McKinlay having expressed the view, on 7 January 1999, that she had '....discussed the contents of this appraisal with Inspector McDougall and I am very happy with them'. It also notes positive views expressed by her Acting Chief Inspector and Deputy Divisional Commander. Likewise, the appraisal completed for the following year has Constable McKinlay again expressing the view that she feels her appraisal to have been fair and accurate. In none of these appraisals is there any suggestion that Constable McKinlay felt depressed nor even that she was perceived, by her supervisors, as performing at less than an acceptable level. Instead, Constable McKinlay is appraised positively.

That overall positive appraisal is, I would submit, borne out by the support offered to Constable McKinlay in her application for transfer to the Traffic Department. Though unsuccessful in that application, the officers who interviewed her on 16 February 2000 appear, from their assessment, to have viewed her positively. Copies of the relevant papers are also enclosed ..... One is moved to question whether an officer who reports to have been depressed and to feeling unsupported would have been seeking a transfer to another Department within the Force where - presumably - the same kind of issues about working shifts and overtime would still arise.

Again it is submitted that regard ought to be had to the very clear guidance offered to Constable McKinlay by Superintendent Pearson in the latter part of November 1995. Whilst, on one view, it might have been suggested that as at that time Constable McKinlay was, relatively speaking, an inexperienced police officer just out of probation who had been noted, at least at the Scottish Police College, to somewhat lack confidence and, therefore, that one might have considered there to be some credible explanation for her not raising concerns she may have had about her relationship with Constable L at the time, it is, I would respectfully submit, far less credible that the difficulties Constable McKinlay tells Dr Stewart she was experiencing in 1999 and 2000 were not raised by her with her supervisor. She was not assessed, at that time, as lacking confidence. Indeed, her remarks to her supervisor appear to have presented entirely the opposite picture.

Again under reference to the sickness absence report ..... the injury to Constable McKinlay's wrist is said to have occurred on 23 December 1999. There is no indication from the report of her having suffered from influenza on Christmas Day that year - though she was, in any event, absent from work by reason of the said wrist injury. The absence report does, however, narrate an earlier period of absence through illness on Constable McKinlay's part, with that illness being described as 'influenza'.

With reference to the same absence report, and in connection with the period of absence, on Constable McKinlay's part, following on and after her shoulder operation, it is clear that there was regular contact with her by her supervisors and that reports were prepared regularly. I would submit that the same goes for the subsequent period of absence commencing on or about 14 February 2001. Insofar as it is suggested in Dr Stewart's letter ....that no-one from her Police Office contacted her, you will note that there appears to have been contact, by phone, by an Inspector Black on 5 March 2001 recording Constable McKinlay still to be unfit for duty, that she was attending her family GP the following day, 6 March 2001, and that a further medical certificate was expected. Thereafter it indicates regular contact as taking place between Constable McKinlay's supervisor and the officer herself, as well as with her husband. Whilst it is to be regretted that there appears to have been a period when there was no contact as between Constable McKinlay and the Force's Occupational Health & Welfare Unit, the fact remains that the officer's supervisors were in regular touch with her, or her husband. If either, or both, of them wished to draw the attention of her supervisors to any perceived lack of contact on the part of the Occupational Health &Welfare Unit, they were free to do so".

"Essentially, the difficulty seems to have revolved around shift working in relation to childcare. This is of course a familiar question. I am quite sure that she was genuinely ill and needed to go off work initially. Of course this took her out of the immediate situation and I am sure that she would have recovered but for the continued worry about returning to the same circumstances added to the inevitable financial consequences of absenting herself from her duties. She is still stuck in this conundrum ....".

"Constable McKinlay apparently wishes to leave Strathclyde Police, on the basis of her securing an ill-health retiral. Strathclyde Police does not share that view, nor express any view other than the wish to have Constable McKinlay to return to work. Flexible working arrangements, have long been available to officers such as Constable McKinlay and if it is her perception that certain patterns of work have caused her, and her husband, difficulties insofar as child care arrangements are concerned, then I see no reason, as a matter of general principle, why a solution to those perceived difficulties cannot be identified and put into place.

I would endorse the views expressed by Dr Watt at the conclusion of his own report that it is inappropriate for the Pension Regulations to be apparently deployed in an effort to resolve uninvestigated or unsubstantiated allegations of maltreatment.

For the foregoing reasons, I cannot see, in all the circumstances, that it can be concluded, satisfactorily, that there is sufficient evidence to support the contention that Constable McKinlay is permanently disabled from performing the ordinary duties of a Police Constable. Neither does it appear to me that, on the hypothesis that it is concluded she is permanently disabled, that it can be concluded that it is in consequence of an injury on duty".

"2. She is suffering from depression which, she claims, was triggered by a series of operational experiences that resulted in late changes of shift sequences, cancellation of time-off and changes in deployment at short notice, all of which exacerbated and caused difficulties in her child-care arrangements.

.....

7. It would appear that Allison's difficulties arise from her trying to co-ordinate and balance domestic family arrangements and the demands of a full-time career in the police service. There is no indication that her role as a constable and her working environment has caused her debility".

"Became depressed because of difficulty reconciling shift work with childcare. There seemed to be no other significant precipitants and I am sure she would have recovered from what [is] obviously a genuine but fairly ordinary first episode of depression had it not been for the continued dynamics of the situation and the prospect of returning to the same".

"[G]ives a coherent and fluent account of her story. To summarise this, it started during pregnancy approximately five years previously, I think because of issues to do with the pressures on her to assume particular duties during her pregnancy and afterwards.

Following on from this is a long catalogue of woes, the main aspect relating to changes of shifts and demands on her time, disruption of her childcare arrangements and her family life, the fact that at times her husband and her would have only one weekend in twelve together and this might be disrupted by further demands on her time. Changes of location were also relevant with the need to take the daughter out of nursery and a variety of similar issues too numerous to document. A particular issue arose one Christmas when ...[s]he had been expecting to take leave but was phoned with joining instructions for a Christmas drink driving campaign secondment to Traffic".

"When seen in the clinic by my SHO, Dr McTaggart, Mrs McKinlay said that she had been working as a Police Officer for some nine years, and she gave a history of having lost her self-esteem when she was bullied by a male colleague some seven years ago which continued intermittently for two years before she was moved to a different station. The bullying was said to comprise of constant criticism in front of fellow colleagues and prisoners. When Mrs McKinlay became pregnant with her four year old daughter she started to feel increasingly anxious about the effects this would have on her work. She felt that she would be criticised by her colleagues, thereby she stated that she attempted to take on more shifts than others as she thought that they would have no case to criticise her. She ....found it difficult to balance her working and home life as apparently her weekend leave was frequently cancelled when she was asked to do shifts at the last minute. This became a source of her increasing anxiety and stress and she stated that in January 2001 she collapsed at home and as a result was signed off work...

It is my view that Mrs McKinlay is currently suffering from moderately severe depressive anxiety disorder which I would agree with you that it seems closely related to stress at work and her difficulty in reconciling working full-time with motherhood and childcare. Unless her employment situation is resolved, despite the treatment she is receiving with antidepressants and attending psychiatric outpatient clinics, and going to the anxiety management, it is my view that her condition will persist albeit at a different degree".

"The interview session commenced with an introduction of function and process by [the medical referee]. The bulk of the interview session was taken up with an interview of [the respondent] by [the medical referee]. The contents of that interview are recorded by [the medical referee] in his written decision. [The medical referee] also had discussions with Dr Watt regarding his earlier conclusions, Dr Watt maintaining his earlier position. The solicitor for the petitioners then made a brief oral submission in support of earlier written submissions. This was followed by a submission on behalf of [the respondent] by her solicitor".

4.1 The first part of the hearing was taken up by the appellant's description of what can reasonably be described as bullying behaviour by a Constable L during 1994 and 1995. The appellant's description was consistent with that recorded by Dr Alex Stewart in his psychiatric report of 12 December [sic] 2002 and with Superintendent Pearson's memo of 12 December 1995 contained within appendix 2 of the police authorities bundle. In addition, the appellant recalled significant anxiety symptoms when going into work when Constable L was on duty 'stomach in knots' (a sense of dread). There is, however, no suggestion that she was suffering from a depressive illness at this time.

4.2 Matters seem to have settled after her transfer to Larkhall in December 1995 and there were no significant difficulties until August 1997 when the appellant was approximately 6 or 7 months pregnant and she suffered an epistaxis (nose bleed) whilst giving evidence in Court. The appellant states that the duty sergeant ordered her to complete her shift despite Mrs McKinlay having expressed (realistic) concerns about hyptertension (high blood pressure) in pregnancy.

4.3 The appellant went on to describe the subsequent difficulties with child care arrangements as outlined in Dr Stewart's report of 12 September 2002 and Dr Singh's report of 11 July 2002.

4.4 Mrs McKinlay described symptoms which suggest that depressive symptomatology was certainly present around April 2000 ..... Mrs McKinlay emphasized that she had been unable to disclose her difficulties to her immediate superiors as she felt that it was unacceptable to admit that she was not coping and that any such admission on her part would merely confirm that she had been the problem all along. She was well aware of adverse comment made about police officers who became pregnant and who made requests for regular shifts etc in connection with child care arrangements.

4.5 Mrs McKinlay told me that by late November/early December 2000 she was having serious difficulties coping with her work and did tell a sergeant in Uddingston of these difficulties. Mrs McKinlay also told me that she had told an Inspector of her difficulty at some point before Christmas; Mrs McKinlay told me that his response was 'you do what we tell you'. Mrs McKinlay also told me that around this time she was subject to further adverse comments passed by friends of Constable L and appears to have suffered from a serious anxiety attack associated with vomiting in February 2001 since when she has not returned to duties.

.......

5.0 Appellant's condition on 20 November 2002 when examined by Dr Watt for the purpose of issuing the certificate of the selected medical practitioner (H1) dated 09 December 2002:

5.1 Mrs McKinlay gave a very clear description of a severe depressive illness with additional physical symptomatology. There were also anxiety-related symptoms including a severe phobic response to police related cues e.g. even seeing a police car or officer at this point would make her panic and feel sick. The sight of a police station or the police helicopter would make her extremely anxious ......

6.1 Mrs McKinlay agreed with me that on 20 November 2002 she was suffering from severe depression and anxiety with additional phobic difficulties. She believes that the severity of her symptoms (especially the panic response to police related cues) means that she will never be able to resume work as a police officer.

6.2 Furthermore, Mrs McKinlay believes that she has suffered a work-related injury because of the combined effects of bullying from Constable L and his friends and long-standing lack of consideration by her superiors with respect to basic child care arrangements; Mrs McKinlay made it clear that she had repeatedly described her circumstances to her superiors and felt under a great deal of pressure to pull her weight".

"7.0 Other Evidence:

7.1 The next stage of the appeal hearing was a review of the statement submitted by Dr A D Watt, selected medical practitioner for Strathclyde Joint Police Board. Dr Watt confirmed that he accepted that at the time he issued form H1 on 20 November 2002 the diagnosis was one of a major depressive illness complicated by features of anxiety and work-related phobias. Dr Watt agreed with me at the time he had issued form H1 the appellant was unfit to return to work as a police officer by reason of her psychiatric disorder.

7.2 Dr Watt confirmed that he disagreed with the opinion expressed in Dr Alex Stewart's report of 12 September 2002 only with regard to the prognosis of her psychiatric disorder; Dr Watt was of the opinion that the appellant's difficulties arose from an 'adjustment disorder' which was reactive (i.e. consequential upon) difficulties in her circumstances (particularly with regard to child care). Dr Watt stated that it was his opinion that there was a likelihood that the appellant's psychiatric disorder would resolve as circumstances improved.

7.3 Dr Watt stated that he had not assessed whether or not Mrs McKinlay's disorder had arisen as a result of work-related injuries because he had not found the appellant to be permanently disabled from performing the ordinary duties of a member of the police force.

7.4 Finally, Dr Watt told me that in his experience it was common for individuals with conditions such as Mrs McKinlay's to eventually recover and return to police duties".

"8.0 Review of submission by the police authority:

8.1 Mr Blair, for the police authority, described the statutory functions of the Authority. He stated that the Police Authority did not dispute that Mrs McKinlay was ill; rather the Authority disputed the permanence of the illness (with respect to the ability to perform the ordinary duties of a member of the police force). Mr Blair also pointed out that Dr Alex Stewart did not have direct access to the facts surrounding the question of sustained bullying. Mr Blair did not dispute that there had been 'an interchange' between Mrs McKinlay and Constable L. He acknowledged that the contents of the memos of 14 November 1995 and 12 December 1995 contained within appendix 2 of the police authority's submission confirmed that there had been problems arising from the behaviour of Constable L which could be construed as bullying. Furthermore, these memos suggest that Mrs McKinlay (then Constable Garden) was, at the very least, unfairly represented by 2 or more unnamed sergeants (paragraph 6 of the November memo) and necessitating counselling of these sergeants by a superintendent (see paragraph 14 of the December memo).

8.2 With regard to Mrs McKinlay's statement about the insensitivity of her superiors to her child care arrangements, Mr Blair indicated that he had no evidence other than what had been described by Mrs McKinlay at the appeal and in various reports.

8.3 He did not, however, dispute Mrs McKinlay's description of how she had been treated. Mr Blair confirmed that it was the Police Authority's position that there was no proven evidence of injury.

8.4 Finally, Mr Blair did acknowledge that there was a period where there was no contact between Constable McKinlay and the forces occupational health unit due to a period of time where the police occupational health service was 'in disarray'".

"9.0 Summary of case:

9.1 First of all, there is clear and undisputed evidence that the appellant was suffering from a major psychiatric disorder on 20 November 2002 when the selected medical practitioner undertook a medical assessment leading to issuing of form H1 on 09 December 2002. It was not disputed by any party at the Appeal Hearing that this condition had, at the time, disabled the appellant from performing the ordinary duties of a member of the police force. There seemed to be no obvious background factors such as a genetic liability to psychiatric disorder which might readily explain Mrs McKinlay's condition.

9.2 There is no evidence to suggest that Mrs McKinlay has caused or aggravated her condition through the use of illicit drugs or through the misuse of prescription drugs or alcohol.

9.3 Mrs McKinlay does appear to have followed advice regarding medical/psychiatric treatment.

9.4 There is evidence that Mrs McKinlay would be, by virtue of her psychological constitution, relatively vulnerable to bullying. For instance, the junior division student assessment of 24 November 1993 states 'Constable Garden is essentially a private individual whose lack of self projection tends to hamper her effectiveness'. Likewise, the author of the memo of 12 December 1995 contained within appendix 2 mentions in paragraph 16 that Constable Garden is 'by nature quiet and subdued'. Likewise, the appraisal of 18 August 1996 contained within appendix 4 includes the following comment by the appraiser 'her only problems relate to her lack of experience and confidence. This is compounded by her fear of making mistakes or taking wrong course of actions'.

9.5 There is clear evidence of what can reasonably be described as bullying occurring from approximately mid 1994 to mid/late 1995. I believe that the use of the term bullying is appropriate as Mrs McKinlay experienced significant anxiety when going into work (stomach in knots, a sense of dread and being terrified), However, there is no evidence to suggest that at this time Mrs McKinlay was suffering from a persistent anxiety disorder or depression. Rather, in her own words, 'I was just terrified of the man' (Constable L).

9.6 I note that none of Mrs McKinlay's staff appraisals contained within appendix 4 identify any welfare problems other than of September 1997 which mentions that she was due to give birth to her first child in October.

9.7 I could identify no evidence to suggest that Mrs McKinlay experienced a post natal depressive illness following the birth of her child in October 1997. The appellant gave the appeal hearing a clear description of the way in which her personal circumstances with regard to child care were completely ignored despite her repeatedly bringing her circumstances to the attention of more senior officers.

9.8 The veracity of the appellant's statements regarding child care was not disputed by any party at the appeal hearing.

9.9 Finally, Mrs McKinlay gave the appeal hearing a description of her attempting to inform superior officers that she was no longer coping with her job around November/December 2000 and that there were further adverse comments made to her by friends of Constable L. Again, no party present at the hearing disputed the accuracy of these statements.

10.1 I was unable to identify any serious inconsistencies between the medical reports, occupational health reports, staff appraisal and various memos with regard to matters of fact (though there are some disputes over dates as highlighted in the response by the police authority to submissions by the appellant); it is my view that these do not impinge upon the appellant's case.

11.1 I formed the opinion that Mrs McKinlay gave an honest and accurate description of the events under consideration. Again, her oral evidence seemed consistent with that contained within the written submissions to the appeal.

12.1 First, I shall address the matter of permanency. It is my opinion that, on balance of probabilities, Mrs McKinlay is permanently disabled by a medical condition from performing the ordinary duties of a member of the police force. It is my view that the disablement is by reason of a severe phobic anxiety state (ICD code F40.8) arising from and in parallel with a severe depressive illness (ICD code F32.2). The reasoning behind my opinion is as follows:

13.0 The second question is in Mrs McKinlay's case is [sic] whether or not her psychiatric disorder has arisen as the result of an injury received in the execution of duty. The oral and written evidence submitted to the appeal hearing leaves me in no doubt that there were definite, sustained and distressing psychological injuries inflicted upon Mrs McKinlay at various points in her police career; the first set of injuries arising from a period of bullying from one or more police officers and a second, more sustained set of stress-related injuries arising from a persisting unwillingness of the police force to recognise Mrs McKinlay's needs with respect to child care from the beginning of 1998 up to her going on permanent sick leave in February 2001. The question I have had to decide is whether or not these injuries have been sufficient in duration or intensity to cause or substantially contribute towards the development of Mrs McKinlay's psychiatric disorder. I have, after careful consideration of the available evidence and using a balance of probabilities test come to the conclusion that the above psychological injuries did indeed substantially cause and then aggravate the appellant's psychiatric disorder.

13.1 It seems reasonable to conclude that these injuries were sustained in the execution of her duty as a police officer.

.......

14.1 It is my opinion that the chain of events can be summarised in terms of Mrs McKinlay being a relatively vulnerable individual by virtue of her relative lack of confidence who is then exposed to a sustained period, of bullying which further undermined her confidence and sowed the seeds of subsequent difficulties including a relative reluctance to acknowledge her distress or difficulties in the context of the staff appraisal system. The final straw for Mrs McKinlay was sustained stress arising from childcare difficulties which were entirely avoidable and arose directly from the police services unwillingness to make allowances for her unusual circumstances (her partner is also a police officer and no other carers appear to have been available). The last minute alteration of shifts/cancellation of leave appears to have been particularly stressful in this setting. The anxiety generated by this stress is likely to have been a major factor in the development of her depression and very probably in the development of her phobic anxiety state.

15.0 In view of the above I have issued a revised certificate relating to part H2 of the Pensions Regulations 1987".

"... the Board intends to proceed to judicial review of the medical referee's decision in this case, and has now commenced the relevant process".

"[T]he action of [the petitioners] in seeking judicial review is undermining her recovery from her major depressive disorder and is putting her life further at risk as a consequence".

"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth".

"[T]hey must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view".

"14.1 It is my opinion that the chain of events can be summarised in terms of Mrs McKinlay being a relatively vulnerable individual by virtue of her relative lack of confidence who is then exposed to a substantial period of bullying which further undermined her confidence and sowed the seeds of subsequent difficulties including a relative reluctance to acknowledge her distress or difficulties in the context of the staff appraisal system. The final straw for Mrs McKinlay was sustained stress arising from childcare difficulties .... The anxiety generated by this stress is likely to have been a major factor in the development of her depression and very probably in the development of her phobic anxiety state".