|
OUTER HOUSE, COURT OF SESSION
[2006] CSOH 119
|
|
P580/04
|
OPINION OF LADY PATON
in the petition of
DUMFRIES &
GALLOWAY COUNCIL
Petitioners;
for
Judicial Review of
medical certificate issued under Regulation H2(3) of the Police Pensions
Regulations 1987
________________
|
Petitioners: Swanson, Solicitor-Advocate; Maclay Murray & Spens
Interested party (Houston): Armstrong Q.C.; Allan McDougall
2 August 2006
Police pensions appeal hearing: natural
justice
[1] In
February 2002, Chief Inspector Houston of Dumfries
and Galloway Constabulary suffered a heart attack. He went on sick leave. He was subsequently diagnosed as suffering from
depression. He remained absent from
work.
[2] In
February 2003, the petitioners (the body responsible for police pensions
in Dumfries and Galloway) decided
to refer Mr Houston to a qualified medical practitioner selected by them
in terms of Regulation H1 of the Police Pensions Regulations 1987. The purpose of the referral was to ascertain
whether Mr Houston was disabled; if so, whether such disablement was
likely to be permanent; and whether such
disablement was the result of an injury received in the execution of his duty
(in which event he would be entitled to an injury award in terms of Regulation B4).
[3] The
petitioners referred Mr Houston to Dr Wilson, the Force medical
officer for Dumfries and Galloway Constabulary. Dr Wilson was accordingly the "selected
medical practitioner" (SMP) in terms of the regulations. Dr Wilson was aware that Mr Houston
had a family history of ischaemic heart disease, and that Mr Houston's
father had died of a heart attack at the age of 49. Dr Wilson's conclusion was that Mr Houston's
heart attack was genetic and not work-related, and that his depression was
attributable to absence from work coupled with trepidation about having to
return to work. Dr Wilson therefore
decided that Mr Houston was permanently disabled as a result of
depression, but that such disablement was not the result of an injury received
in the execution of duty. The decision
meant that Mr Houston was retired on grounds of ill-health with effect
from 4 February 2003, but
that he was not entitled to a police injury award.
[4] Mr Houston
did not accept Dr Wilson's conclusion that the depression was not
work-related. He therefore appealed in
terms of Regulation H2.
[5] The
Secretary of State appointed Dr Archibald Downie to act as medical referee. Mr Houston's appeal took place on 19 December 2003. Dr Downie made a decision and issued a
certificate dated 20 December 2003
in terms of Regulation H2(3). The certificate stated inter alia that
Mr Houston's depression was the result of an injury received in the
execution of duty. Dr Downie added
the following additional sentence:
"The condition
[i.e. depression] was probably initiated and certainly exacerbated in the
execution of duty."
Dr Downie's decision entitled Mr Houston
to a police injury award.
[6] The
petitioners then raised the current petition for judicial review. They contended that Mr Houston's appeal
hearing before Dr Downie had been conducted without regard to the
principles of natural justice. They also
contended that the decision was unreasonable as defined in Associated
Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223.
They sought reduction of Dr Downie's decision.
[7] The
petition was served upon Dr Downie as respondent, and upon three
interested parties, namely The Scottish Ministers, the Scottish Public Pensions
Agency (SPPA), and Mr Houston. Dr Downie
and Mr Houston lodged Answers.
Dispute in fact
[8] The
petition and answers revealed a dispute in fact relating to the conduct of the
appeal hearing on 19 December
2003. Accordingly at a first
hearing on 9 June 2004,
the court ordered affidavits.
[9] The
affidavits did not fully resolve the factual dispute. By motion on 18 January 2005, Mr Houston invited the court to
allow parole evidence. The court
accepted that it was appropriate to order parole evidence in terms of Rule of
Court 58.9, and granted warrant to cite witnesses. The first hearing was continued for parole
evidence to be led.
[10] By letter dated 26 January
2005, Dr Downie's solicitors intimated that Dr Downie had
retired from full-time medical practice, and therefore would take no further
steps as a party in the proceedings. Dr Downie
would be glad to assist the court as a witness.
[11] At the continued first hearing on 3 February 2005, Mrs Swanson, Solicitor-Advocate and Mr Armstrong
Q.C. advised the court that parties wished the issue of natural justice to be
resolved before any other matter.
Evidence
[12] Evidence was led on Thursday and Friday 3 and 4 February 2005, and Wednesday 9 February 2005. Submissions were made on Wednesday 7 December 2005 and Wednesday 1 February 2006.
[13] The petitioners' witnesses were: Dr William Wilson (56), the original
certificating doctor, and Chief Inspector Stewart Wilson (47) representing the
Force.
[14] The interested party Mr Houston (47) gave evidence. Two further witnesses were led on his behalf,
namely David Dick (47) of the Police Federation ("the Federation"), and
the medical referee Dr Downie (70).
Credibility and reliability
[15] It was clear to me that each witness was doing his best to
recall precisely and truthfully what had occurred. Accordingly I regarded each witness as
credible.
[16] Nevertheless there were discrepancies in evidence, relating for
example to the order in which the various participants arrived at the appeal
hearing, who spoke to whom, where they sat, the sequence of events leading to Dr Downie
interviewing Mr Houston on his own, how and when they came to be joined by
Dr Wilson, in what circumstances the two police officers (Chief Inspector
Wilson representing the Force, and Mr Dick representing the Federation)
came to join them, and then to leave them again. Ultimately I had to treat some passages of
evidence as unreliable. I also concluded
that it was unnecessary to resolve some of the more minor discrepancies.
Sequence of events leading to the appeal hearing
[17] I found the following facts proved:
[18] The Scottish Public Pensions Agency (SPPA) sent the following
documents to Dr Downie in advance of the appeal hearing:
1. SPPA sheet dated March 2002 entitled "A
brief introduction to medical appeals under the Police Pensions Scheme".
2. Home Office Guidance dated October 1999
containing assorted papers, and headed "Medical Appeals under the Police
Pension Scheme: Notice by Home Office to
Medical Referees".
3. SPPA General Guidance to Medical
Referees dated August 2002.
Dr Downie studied those
documents in preparation for the hearing.
He also obtained information about Mr Houston from a general
practitioner, a consultant psychiatrist, a consultant psychologist, and the
Force medical officer Dr Wilson.
[19] In mid-October 2003, Mr Houston prepared a 12-page submission
headed "Information in support of Claim", detailing events at work (including
changing management policies and procedures) and their effect on him. He made reference to increased workloads,
reduced staffing levels, the taking home of work, unachievable work targets,
public rebukes, and other similar matters resulting in feelings of increasing
pressure, irritability, tension, and sleep disturbance. He sent the submission to Dr Downie. A copy was forwarded to the Force.
[20] By letter to Dr Downie dated 30 October 2003, the Force refuted Mr Houston's
claim that management policies and procedures had led to his ill-health
retirement. The letter further stated
that if Dr Downie intended to hear verbal submissions on that matter, the Chief
Constable (or one of his representatives) might wish to give a verbal
submission.
[21] By letter to Dr Downie dated 17 November 2003, Mr Houston stated his assumption that
the Force would have provided a written response to his 12-page
submission. He requested a copy of that
response. He pointed out that otherwise
he would not have fair notice of the position being adopted by the Force.
[22] By letter to Dr Downie dated 26 November 2003, Mr Houston again pointed out that, in
the interests of fairness, it would be prudent for the Force to give their
comments for perusal prior to the hearing "to allow for the preparation of any
rebuttal".
[23] By letter to the Force dated 1 December 2003, Dr Downie asked whether the Force
intended to provide a written response to Mr Houston's submission.
[24] By letter to Dr Downie dated 10 December 2003, Chief Inspector Stewart Wilson of the
Force advised:
" ... Dr Wilson
will represent the interests of the force at the hearing in respect of the
medical issues, which are relevant to the circumstances.
While I note you indicate that Mr Houston
will be accompanied by David Dick of the Scottish Police Federation, my
understanding is that this will not be the case, provided that the Force will
not be similarly represented.
If however it transpires that David Dick is
to attend, then the Force would be present.
It is appreciated that neither of us will be likely to play an active
part in the hearing ..."
[25] In the subsequent paragraphs of the letter, Chief Inspector
Wilson indicated that Mr Houston's 12-page submission appeared to go beyond the
remit of the appeal hearing. He commented
that if, nevertheless, that submission was to be given consideration during the
hearing, the Force wished to be advised of that fact, so that the Force could
let Dr Downie have "a more balanced perspective than that which Mr Houston has
portrayed". A manuscript note had been
added to the Force file copy of the letter of 10 December 2003 in the following terms:
"15/12/03 - Dr Downie phoned. Requests representation at
hearing (of self and PC Dick) but no need for retort to submission by Ex.C.I.
Houston. S.W. C.I. 15/12/03"
Chief Inspector Wilson confirmed
that he had written the note, and Dr Downie confirmed that he had spoken to the
chief inspector by phone and had indicated that there was no need for a written
submission, as the Force could deal with the issues at the appeal hearing.
[26] Dr Downie was not sure why it was suggested that neither Mr
Dick nor Chief Inspector Wilson would be likely to play an active part in the
hearing. As he put it, "I had written
evidence, but I would have been prepared to listen to verbal evidence". Dr Downie was working on the assumption that
his role was to identify the cause of Mr Houston's illness. Without looking at the broad picture, it was
difficult to reach a conclusion. However
Dr Downie had not specifically advised or instructed the Force what to do. He did not feel that it was wrong that there
was no written submission from the Force.
He would have been happy to listen to their submissions at the hearing.
The appeal hearing
[27] I found the following facts proved:
[28] The appeal hearing was arranged to take place at a general
practitioner's surgery, Lochthorn Medical Centre, on Friday 19 December 2003 at 2.30 p.m.
[29] At a relatively early stage in proceedings, Dr Downie began to
interview Mr Houston on his own. Dr
Downie wished to take a clinical history of the depression, and he felt that Mr
Houston was entitled to the same confidentiality as any other medical
patient.
[30] The Force medical officer, Dr Wilson arrived at the surgery
some minutes later. When he learned that
Dr Downie was interviewing Mr Houston alone, he went to join them. It was not clear on the evidence whether Dr
Wilson was permitted to remain with them, or whether he was asked to
leave. Dr Wilson did not in fact mind
whether Dr Downie interviewed Mr Houston in private. As he put it, "I didn't think it made much
difference ... I didn't see any problem with it."
[31] After the one-to-one interview, the appeal hearing proper was
convened. Five persons were
present: Dr Downie, Mr Houston supported
by Mr Dick of the Federation, Chief Inspector Wilson (representing the
interests of the Force), and the Force medical officer Dr Wilson.
[32] Chief Inspector Wilson had with him a typed Summary of Issues
with five headings, namely Change Management; Management Styles; Fairness and Equality; Stress;
and Default. The summary
represented a general overview of the Force position, and to some extent
provided a response to points made by Mr Houston in his 12-page
submission. It was the chief inspector's
intention to read out the summary at the hearing.
[33] Dr Downie announced that the appeal hearing would start,
and began to explain how he would approach the question of causation. Mr Dick then read out a statement
indicating that he and Chief Inspector Wilson should not be present while
personal medical matters were being discussed.
Chief Inspector Wilson responded by pointing out that he had some
comments to make on management issues, if given the opportunity. Mr Houston objected to the introduction
of the Force comments on management issues at that late stage, without his
having had any advance notice, despite his requests.
[34] Dr Downie was taken aback by these developments. The weight of the evidence suggests that he
was unsure what to do. He referred to
his guidance notes. Dr Wilson then
voiced a view that medical matters should not be discussed in front of lay
people, and that the two officers should perhaps leave. Dr Downie made no explicit verbal
response. He may have appeared to
nod. At all events, his behaviour was
interpreted by both Mr Dick and Chief Inspector Wilson as an agreement that
they should be excluded while medical matters were dealt with. Both officers left. Chief Inspector Wilson was under the impression
that he would be allowed to return to the hearing at a later stage in order to
present submissions on management issues, but Mr Dick was under the
impression that neither of them would participate further. Both men sat chatting in the surgery
reception area - Chief Inspector Wilson remaining in the premises because he
thought that he would be recalled to the appeal hearing; and Mr Dick remaining in the premises because
he wished to be available as a support for Mr Houston, and also because Mr
Houston's car was his only means of transport home.
[35] Meantime Dr Wilson sat with Dr Downie and Mr Houston, expecting
to deal with medical issues at that stage, and anticipating that, if management
issues were still live, the two officers would be brought back to make any
representations they thought fit.
However Dr Downie, for his part, was operating on the basis that both Mr Dick
and the chief inspector had voluntarily waived any right to make further
submissions or contributions to the appeal hearing.
[36] Dr Downie continued the appeal hearing with Mr Houston and Dr
Wilson. Mr Houston's 12-page
submission was considered. Dr Downie
took into account certain material from that submission, including information
about increased workloads, reduced staffing levels, the taking home of work,
unachievable work targets, public criticisms of Mr Houston, and Mr Houston's
feeling of increasing pressure at work resulting in certain behavioural
symptoms such as increased irritability, an inability to relax, and sleep
disturbance. Dr Downie also took into
account letters from Mr Houston's general practitioner, consultant
psychiatrist, consultant psychologist, and the Force medical officer Dr
Wilson.
[37] Having considered those matters, Dr Downie reached a view
favourable to Mr Houston. As he put
it, he felt that he had "sufficient information to believe that the cause of
the depressive illness was job-related".
He communicated his feeling to Mr Houston and Dr Wilson. Dr Wilson, who had been expecting a
two-stage procedure, was taken aback, but felt that there was nothing he could
do except to leave the hearing and report to the chief inspector and Mr Dick
that a final decision had been reached. Mr Dick
was not surprised by developments. The
chief inspector on the other hand was surprised, but made no representations at
the time. Everyone then left the
surgery.
[38] The following day, Dr Downie issued a certificate dated 20 December
2003, certifying that Mr Houston was disabled from performing the ordinary
duties of a member of the police force; that the disablement was likely to be
permanent; that the disabling condition
was depression; and finally that "the
condition [i.e. depression] is the result of an injury received in the
execution of duty ... the condition was probably initiated and certainly
exacerbated in the execution of duty." Dr Downie
also produced a report with a covering letter dated 21 December 2003. In that report, Dr Downie indicated that
Mr Houston had made a good recovery from his heart attack, but was still
suffering from depression. The report
concluded:
"It is my
opinion he is disabled as the result of injury received in the execution of
duty and this disablement is likely to be permanent."
Relevant guidance for medical referees
[39] The regulations and guidance applicable to police pensions
appeal procedure include the following:
(i) The Police Pensions
Regulations 1987 (S.I. 1987/257)
Schedule H provides inter alia:
"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 - (a) the selected medical practitioner; and
(b) any duly qualified medical practitioner appointed for the purpose by either
party."
(ii) SPPA General Guidance to
Medical Referees dated August 2002
Paragraph 6 of the SPPA General
Guidance to Medical Referees dated August 2002 provides:
"The
conduct of the hearing
The Police
Pensions Regulations do not lay down procedural rules for the hearing. However, you have the responsibility for
ensuring that it is conducted with due regard to fairness and the principles of
natural justice. The following points
may help ...
1. You are entitled to conduct a physical
examination of the appellant or to appoint any other person for that purpose ...
2. Each party must be given a reasonable
opportunity to present their arguments and to comment on the submissions
(written and oral) made by the other.
You should not enter into discussions about the subject matter of the
appeal with either party without the other party having an opportunity to be
present or represented - see paragraphs 9 and 11 ..."
Paragraph 8 provides:
"Attendance
and representation at appeal hearing
The Regulations
provide that the appeal hearing, including any interview or medical
examination, may be attended by the selected medical practitioner (SMP) and any
duly qualified medical practitioner appointed by either party. In many cases the SMP will also act as the
police authority's medical representative at the hearing. If such medical practitioners wish to attend
you must allow them to do so. At all stages of the appeal, including any examination. If you would have difficulty in accepting
this legal requirement, you should not agree to act as referee.
The question of
people other than the nominated medical practitioners being able to attend the
appeal proceeding is a matter within your discretion. However we would advise as follows:
(a)
it is reasonable, as a rule, to restrict attendance to
those with a right to attend (i.e. those medical practitioners referred
to in paragraph 9);
(b)
where a non-medical person such as a solicitor turns up
without prior warnings, you should not let him attend the proceedings;
(c) if, reasonably in
advance of the interview/examination, a solicitor or other non-medical person
indicates that he wishes to attend on behalf of either party, you should say
that you would allow this only if his attendance is clearly agreed by the
other party to the appeal.
In order that
justice is not only done but also seen to be done, you should take care not to
exclude one party present at the appeal from any conversation or discussion you
are having with the other. You should
also avoid using the time before or after the appeal to hold a conversation
with either party on their own, whether the matter
discussed is or is not relevant to the appeal ..."
Paragraph 13 provides:
"Issues of
fact
If there are
disputes about facts you should (a) ensure that each party provides you with
the clearest possible evidence in support of their case, (b) allow each party
to comment on the other's evidence, and (c) come to your decision on the
balance of probabilities".
(iii) Home Office Guidance for Medical
Referees dated October 1999
Paragraph 17 of the Home Office Guidance
dated October 1999 provides:
"If there are
disputes about facts you should ensure that each party provides you with the
clearest possible evidence in support of their case, allow each party to
comment on the other's evidence, and come to your decision on the balance of
probabilities."
Submissions
Submissions for the petitioners
[40] Mrs Swanson submitted that the petitioners' first
plea-in-law should be sustained, and Dr Downie's decision reduced. The appeal had been conducted without due
regard to the principles of natural justice and fairness. Four specific duties had been breached: - (i) the duty to ensure that neither party was
excluded from the hearing; (ii) the duty
to allow both parties an opportunity to present their case; (iii) the duty to consider all relevant
material available prior to making a decision;
and (iv) the duty to give reasons for the decision.
(i) The duty to ensure that neither party was
excluded from the hearing
[41] Reference was made to paragraphs 6 and 8 of the SPPA General
Guidance to Medical Referees. (a) One-to-one
interview: The evidence established
that Dr Downie and Mr Houston had been alone together in the
examination room. They had a one-to-one
conversation. The subject-matter of the
conversation was irrelevant. A breach of
the rules had occurred. (b) Exclusion
of the two police officers from the hearing:
The evidence of Chief
Inspector Wilson and Mr Houston was to the effect that the chief inspector
had expressly said that he wished to make representations. Mr Houston had considered that unfair,
because he thought that there should have been writing in advance. The weight of the evidence pointed to an
understanding that the officers would go back into the examination room. Dr Wilson, Chief Inspector Wilson, and Mr Houston
all gave evidence to that effect. Chief
Inspector Wilson and Mr Dick had therefore been wrongly excluded from the
appeal hearing.
(ii) The duty to allow both parties an opportunity
to present their case, and
(iii) The duty to consider all relevant material available
prior to taking a decision
[42] In conducting the hearing in the way he did, Dr Downie was
in breach of duties (ii) and (iii). Chief Inspector Wilson had prepared a summary
of the issues he wished to speak about.
Prior to the hearing, he had been told by Dr Downie that there was
no need for a written response, as he could come to the hearing and make oral
submissions. Dr Downie had been
aware well before the hearing that the chief inspector wished to make
representations on behalf of the Force.
It might be said that no objection had been raised about the way in
which the hearing progressed. But Dr Downie
was in charge of procedure, and he allowed events to unfold in the way they
did. Even if Dr Downie was of the
view that it was appropriate to exclude Mr Dick and Chief Inspector Wilson
from the medical examination, he had a duty to ensure that they were brought
back to present any submissions, and to put relevant material before him.
[43] In support of duties (ii)
and (iii), Mrs Swanson
referred to the SPPA General Guidance to Medical Referees, paragraph 13, and to
several authorities, namely Barrs
v British Wool Marketing Board, 1957 S.C. 72; Mahmood v West Dunbartonshire Licensing Board, 1998 S.C.L.R.
843; McDonnell, petitioner, 1987
S.L.T. 486; Graham v Ladeside of Kilbirnie Bowling Club, 1990
S.C. 365; Malloch v Aberdeen Corporation, 1971
S.C. (H.L.) 85; R. v Deputy
Industrial Injuries Commissioner, ex parte
Moore [1965] 1 Q.B. 456, at page 476;
CRS Leisure Ltd. v Dumbarton
District Licensing Board, 1990 S.L.T. 200, at page 202C-G; Brentnall v Free Presbyterian Church of Scotland, 1986 S.L.T. 471,
at pages 488-489; Tait v Central Radio Taxis (Tollcross) Ltd., 1989
S.L.T. 217, at page 221D.
(iv) The duty to give reasons for the
decision
[44] There had been a further breach of natural justice because of a
failure to give reasons. In the
certificate issued by Dr Downie, he stated that the appellant was permanently
disabled in respect of "depression", and that the depression was "the result of
an injury received in the execution of duty ... The condition was probably initiated
and certainly exacerbated in the execution of duty". In a covering letter he set out the procedure
which had taken place, and concluded:
"It is my
opinion [Mr Houston] is disabled as the result of injury received in the
execution of duty and this disablement is likely to be permanent."
The fact that no reasons were given
for the decision was in itself a breach of natural justice, and sufficient for
the decision to be reduced. Reference
was made to Lonhro plc v Secretary
of State for Trade and Industry [1989] 2 All E.R. 609, at page 620B; Bass
Taverns Ltd v Clydebank
District Licensing Board, 1995 S.L.T. 1275, at page 1277E-I; Chief Constable v Lothian & Borders Police Board, 2005 SLT 315,
at page 336; Safeway Stores plc v National Appeal Panel, 1996
S.C. 37, at page 40. Reference was also
made to the Home Office Guidance, paragraph 13, and the SPPA Guidance paragraph
10.
Concluding submissions
[45] It was submitted that breach of any one of the duties (i) to (iv) would be sufficient to entitle the court to sustain the
petitioners' first plea-in-law. The
decision should be reduced.
[46] Finally, Mrs Swanson sought to anticipate what might be
said against the petitioners, and made six points in answer:
(1) It might be suggested that there was no causal
link between the procedural flaws and the final decision. However that was not the case: the Force had substantial arguments to
present, contradicting Mr Houston's position.
(2) It might be argued that no objection was made
at the time. However that did not
constitute a bar to any subsequent challenge:
cf. Mahmood, cit. sup.
(3) It might be argued that the Force was not
without a representative, because Dr Wilson was present. But it was clear on the evidence that Dr Wilson
had not taken on the role of addressing Mr Houston's submissions about
management issues: that was for Chief
Inspector Wilson.
(4) It might be said that the SPPA Guidance and
Home Office Guidance were indeed merely guidance, with no legal force. But even if those publications were
disregarded, it was clear at common law that a decision-maker such as a medical
referee required to obey the rules of natural justice.
(5) Points might be taken about the reliability
(or otherwise) of certain evidence (for example, when Dr Wilson entered
the examination room). But those parts
of the evidence were not relevant to the core of evidence upon which the
petitioners relied to demonstrate a breach of the principles of natural
justice.
(6) Ultimately it was irrelevant whether the two
officers had left voluntarily, or had been asked to leave: the issue was the impropriety of concluding
the hearing without giving either of them some opportunity to present their
response, and the failure on the part of the decision-maker to have all the
relevant materials in front of him (duties (ii) and (iii)).
Submissions for the interested
party Mr Houston
[47] Senior counsel for the interested party invited the court to
refuse the petitioners' first plea-in-law.
Unusual and unique features of police
pension appeals
[48] Counsel submitted that in terms of Schedule H paragraph 4, the
appellant or the police authority "may" submit a written statement to the
medical referee: it was not
mandatory. Whether or not to submit such
a statement was a matter for the party concerned.
[49] Further, Schedule H paragraph 5 provided:
"5. Any interview or
examination may be attended by - (a) the selected medical practitioner; and (b) any duly qualified medical
practitioner appointed for the purpose by either party."
There was therefore no absolute
right to attend. There might be an issue
where the discretion lay: i.e.
whether it was the discretion of the medical referee, or the discretion of
either party. The SPPA Guidance
attempted to clarify the matter.
[50] Reference was made to paragraph 8 of that guidance (quoted in
paragraph [39] above). Counsel submitted
that the SPPA Guidance was indeed only guidance. It was not the law. Whether or not to allow the attendance of
anyone lay in the hands of the medical referee.
He was the master of the procedure.
[51] In relation to the attendance of "people other than the
nominated medical practitioners", the referee had a discretion. There was no provision in the Regulations
that a non-medical person could attend:
the matter was left to the discretion of the medical referee.
[52] Matters of attendance had to be viewed in the context of what
was fair and reasonable, in the context of natural justice. Paragraph 8(a) was arguably inaccurate, as on
a proper construction of paragraph 5 of Schedule H of the Regulations, no-one
had a right to attend. The referee was
the master of procedure;
he had discretion to allow or to refuse attendance. The SPPA Guidance was at odds with the
statutory regulations. A non-medical
person could attend "only if his attendance is clearly agreed by the other
party to the appeal". There had been no
such agreement in the present case.
[53] Counsel referred to Strathclyde Joint Police Board v McKinlay, 2005 S.L.T. 764,
at paragraph [35], and to the cases cited by the petitioners, namely Barrs v British Wool Marketing Board, and
Mahmood v West
Dunbartonshire Licensing Board, cit. sup. He submitted that the test was whether, on
the evidence viewed objectively, a reasonable man would have thought that what
occurred was unfair. There was a
conflict on the evidence. It was for the
court to determine what (on the evidence) had happened; and whether what had happened was
unfair from the viewpoint of a reasonable man.
[54] Cases such as McDonnell, petitioner; CRS Leisure Ltd. v Dumbarton District Licensing Board, and
Tait v Central Radio Taxis
(Tollcross) Ltd. cit. sup. were
illustrative examples, decided on their own facts and circumstances. The present case had to be decided on its own
facts, i.e. in the context of a medical referee's appeal hearing: cf. dicta in paragraph [43] of Strathclyde
Joint Police Board v McKinlay, cit. sup.; Lloyd v McMahon [1987] AC 625, at page 702G. The present case was governed by Schedule H
of the Regulations. The cases cited by Mrs
Swanson were not necessarily relevant in the context of a case such as the
present. One had to refer to the
statute: the 1987 Regulations: cf. dicta in paragraphs [45] and [46]
of Strathclyde Joint Police Board
v McKinlay, cit. sup. Lord
Reed distinguished the police pension procedure from normal litigation. The medical referee was carrying out an
"investigation" to determine the matter of new.
He was not an appeal court in the legal sense from the selected medical practitioner. The hearing was a new hearing. The medical referee was entitled to take into
account material which had never been before the SMP (selected medical
practitioner). The medical referee had
to interview the person. Any question of
medical causation was a medical issue, for the medical referee to
determine: cf. Bradley v London Fire and Civil Defence
Authority [1995] I.R.L.R. 46, paragraphs 29 to 30; R. v Kellam, ex parte South Wales Police
Authority [2000] I.C.R. 632, at page 644H; Phillips v Strathclyde Joint Police Board, 2002 S.L.T. 1271, at
page 1274F; and Lothian and Borders
Police Board v Ward, 2004
S.L.T. 215. In the present case, the
decision-maker was a medical man, and the principal issues to be determined
were medical issues.
[55] Particularly significant was the passage by Lord Reed in Strathclyde
Joint Police Board v McKinlay,
cit. sup., at paragraph [48]:
"The function of
the medical referee thus has an investigative character, rather than being
purely adjudicatory. He carries out such
examinations and interviews of the appellant as he considers necessary. He is entitled to rely on his own medical
knowledge in reaching his decision. He
is not restricted to accepting or rejecting the respective contentions (if any)
of the appellant and the police authority.
He is free to form his own view, although it may not coincide with the
contentions of either party."
Counsel urged the court to adopt
that approach.
[56] The decision-maker had vested in him extraordinary powers: cf. the observations in paragraphs [51] to
[54] of Strathclyde Joint Police Board v McKinlay, cit. sup.
The proceedings before a medical referee were unusual. The referee was master of his own
procedure. He must act fairly, but that
was to be construed in the particular context of the procedure. The procedure was informal. The referee was a medical man. So the requirements of natural justice which
might be considered appropriate in litigation did not necessarily apply. Against that background, the test was the
test in Mahmood, namely: what
would an objective reasonable man devine from the circumstances.
No breach of natural justice
[57] Counsel then turned to the facts of the case, under two
sub-headings: (i) the one-to-one
interview; and
(ii) the main hearing with the withdrawal of the two officers.
(i) The one-to-one interview:
[58] The evidence suggested that the preliminary examination was
truly preliminary. It was not intended
to be the appeal proper. The medical
referee was bringing himself up-to-date with Mr Houston's current medical
condition. That was nothing to do with
the need to determine whether he had sustained an injury in the course of duty
as a police officer. The weight of the evidence
established that Dr Downie was alone with Mr Houston for only a few
minutes before Dr Wilson arrived. Dr Wilson
was then quickly brought up-to-date.
There had been no objection at the time.
There was an inference of acquiescence on the part of Dr Wilson. All of those events had taken place against a
background of Mr Houston being very nervous. On the evidence, there had been no breach of
natural justice under this sub-heading.
(ii) The main hearing with the
withdrawal of the two officers:
[59] The criticism was that Dr Downie had allowed a situation
to develop whereby Chief Inspector Wilson was prevented from making a
submission. Counsel submitted that the
evidence suggested the contrary. The
evidence suggested what a reasonable man would have seen as a decision made
jointly by Chief Inspector Wilson and Mr Dick to withdraw absolutely from
the proceedings. Only Chief Inspector
Wilson claimed (a) actually to have stated in the hearing that he wished to
read out his submission;
(b) that Dr Downie instructed both himself and Mr Dick
to leave the hearing (the thrust of the other evidence being that Dr Downie
was quite passive at that stage); (c)
actually to have stated in the hearing that if management issues were to be
raised, he wanted to address the medical referee. The proper test was whether or not the
medical referee was entitled to assume that the two men were not coming
back. If he was entitled to assume that
the two had left for good, the petitioners failed, because the onus of proof
rested on them. The petitioners had to
prove that Dr Downie was not entitled to make such an assumption. The previous correspondence informed only the
expectations of Dr Wilson and Chief Inspector Wilson. The letters showed only what those two
persons thought would happen. But the
important matter was what the medical referee thought about what was unfolding
at the time. His evidence was that he
was surprised by the turn of events. A
letter dated 24 November 2003
from Dr Downie to the Chief Constable showed that the referee expected to
consider the evidence of both parties.
The letter dated 10 December 2003 from Chief Inspector Wilson to Dr Downie
(quoted in paragraph [24] above) reflected what in fact happened: in the event, neither the Force
representative nor the Federation representative played any active part.
[60] The court should view the matter from the perspective of the
medical referee in the particular circumstances of the case. It was entirely a matter for the Force
whether they lodged a written statement.
Ultimately they chose not to.
Thus the medical referee had the following information:
(a) the Force had the
choice whether or not to lodge a written statement: ultimately they chose not to.
(b) the Force had
indicated that they did not require to have a representative present provided
the Federation representative (Mr Dick) was not present: that was the context in which the two men's
departure should be put.
The onus was therefore on the
petitioners to prove that the medical referee was not entitled to assume that
the two men had left for good. The only
evidence upon which the petitioners could rely came from Dr Wilson and Chief
Inspector Wilson. They represented the
minority of the witnesses, and (counsel submitted) each was unreliable.
[61] Counsel then high-lighted the deficiencies in the petitioners'
case:
(i)
Only Dr Wilson and Chief Inspector Wilson asserted
that a two-stage procedure was expected.
(ii)
Dr Wilson was unreliable. He alone suggested that the two men's
departure was in respect of medical issues only. The other four witnesses (Mr Dick, Mr
Houston, Dr Downie, and Chief Inspector Wilson) gave evidence that the
departure was unqualified. Further Dr Wilson
was alone in saying that Mr Houston was composed and not agitated. On that point, his evidence was contradicted
by the evidence of Mr Dick, Dr Downie, and Chief Inspector
Wilson. Finally, parts of Dr Wilson's
evidence were very vague.
(iii)
Chief Inspector Wilson was unreliable. Only he stated that the two officers were
instructed or directed by Dr Downie to leave. By contrast, Mr Houston, Dr Downie,
and Dr Wilson said that there was no such instruction or direction. Further only the chief inspector asserted
that he had told Dr Downie that he wanted to make a submission: the tenor of the rest of the evidence was
that the chief inspector had prepared a statement, but had subsequently
withdrawn without saying anything, giving an inference that he had acquiesced
in not taking the statement any further.
(iv)
The weight of the evidence therefore supported a tacit
agreement, a decision reached, and an unqualified consensus that the two men
should leave.
(v)
The weight of the evidence therefore supported the
picture of the parties' representatives making submissions and reaching a
consensus. The medical referee was
surprised, but decided that if that was what the parties wanted, that was what
should happen. In such circumstances
there was no application of any universal principle of natural justice.
(vi) The evidence was
convoluted. The court might take the
view that the evidence was too contradictory to be relied upon to any
extent. In such circumstances, the
petitioners failed to discharge the onus of proof resting upon them. The document which the chief inspector had
prepared was more an expression of police policy than a rebuttal of Mr Houston's
12-page submission. In any event, in a
hearing before a medical referee, there was no question of placing fault at the
door of one party: the real question at
issue was whether the disabling condition had been caused by the
conditions on duty. So the fact that the
chief inspector's document was not heard could not be compared with a situation
where there might be a breach of natural justice because an opportunity to
cross-examine was denied, or a party was prevented from giving evidence which
was central to the issue: McKinlay,
op. cit., paragraphs [35], [40], and [50].
The document did not contain facts central to the issue.
[62] Counsel concluded the first part of his submissions by
contending that Chief Inspector Wilson and Mr Dick had agree to
withdraw; and their agreement to leave
matters to the doctors was unconditional.
[63] If however the court was against Mr Houston on that matter,
there was a second argument, namely there had been no breach of natural
justice, as there had been equality and fairness.
(1) Natural justice should be equated with
fairness: Barrs v British Wool Marketing Board, 1957
S.C. 72, at page 82. Both parties were
dealt with equally. Both the Force
representative and the Federation representative were excluded, leaving Mr Houston
to represent himself, and Dr Wilson to represent the Force. Dr Wilson was well-placed to represent
the police authority. He had been
briefed on what to say (a letter to Dr Wilson dated 26 November 2003
was a précis of the chief inspector's statement).
(2) The chief inspector had no right to be
present: paragraph 8 of the SPPA
Guidance. The matter was one for the
discretion of the medical referee. If
the chief inspector had no absolute right to be present, there was no breach of
natural justice in excluding him.
(3) A non-medical person such as Chief Inspector
Wilson could only be present with the agreement of the other party. As Mr Dick had objected to the chief
inspector's presence, it followed that Mr Dick was not agreeing to the chief
inspector being present.
(4) Even if it were to be accepted that the
withdrawal of the two men was conditional (i.e. that there would be a return if
management issues had arisen), counsel submitted that the condition could not
be purified. Any expectation of return
was conditional on management issues. It
involved an exercise of discretion on the part of the medical referee. The tenor of the evidence suggested that only
medical issues were discussed, and not management issues. Accordingly the condition was not purified.
(5) There had been no breach of natural justice,
as the loss of the opportunity to put forward Chief Inspector Wilson's
submission was entirely of the Force's own making. As a matter of law, there was no remedy in
the present process: R. v Home Secretary, ex parte Al-Mehdawi [1990]
1 A.C. 877, at pages 898A, 900D-F, and 901B-E.
In the present case, the Force had failed to lodge a statement in
advance of the hearing. Chief Inspector
Wilson had failed to stand his ground at the appeal hearing, by, for example,
suggesting some other procedure, or making explicit the qualified nature of the
withdrawal, or putting the police authority's case (such as it was).
[64] At this stage, counsel indicated that he had been dealing with
the petitioners' assertions that there had been failures in (i) the duty to
ensure that neither party was excluded from the hearing, and (ii) the duty to
allow both parties an opportunity to present their case. He then turned to the alleged breaches of
duties (iii) and (iv), i.e. (iii) the duty to consider
all relevant material, and (iv) the duty to give reasons.
[65] In relation to the duty (iii) to consider all the material, counsel
submitted that the matter had to be viewed from the perspective of the medical
referee. If the material which the chief
inspector had was not relevant, there could be no breach in not considering
it. The chief inspector's prepared
statement was not designed to rebut issues central to the case: cf. dicta in Strathclyde Joint Police
Board v McKinlay, 2005
S.L.T. 764 at paragraphs [35], [40], [50].
Counsel submitted that the chief inspector's statement was
peripheral. On any view, what the chief
inspector had intended to say did not address central issues. There was no breach of natural justice in not
considering it.
[66] In relation to the duty (iv) to give
reasons, counsel submitted that for the purposes of natural justice, there was
no absolute requirement that reasons be given.
Whether or not reasons were required depended upon the
character of the decision-making body, the kind of decision being made, and the
relevant statutory framework. The
fact that no reasons had been given did not imply a breach of natural
justice. In all the circumstances, there
had been no requirement for reasons in the present case. Reference was made to Lloyd v McMahon [1987] AC 625, at
pages 702H to 703B. In the present case,
(i) the character of the decision-making was the medical referee appeal
hearing, a particular and unusual procedure, quite remote
from a lis inter partes;
cf. Lord Reed at paragraph [43] et seq. in Strathclyde
Joint Police Board v McKinlay
cit. sup. (ii) The kind of
decision being undertaken was the medical referee deciding a matter of medical
opinion: cf. dicta of Lord Reed
at paragraphs [35], [40], and [50].
There might be cases where the medical referee had to consider legal
matters, but this case was not one. The
referee was entitled to draw on his own experience when coming to his
view. (iii) The statutory framework was
the Police Pensions Regulations. Those
regulations did not require reasons: cf.
McKinlay cit. sup. at page 766. A certificate had to be issued in terms of
regulation H2(3):
there was no mention of reasons.
Furthermore, police pensions appeals did not fall within the category of
cases regulated by the Tribunals and Inquiries Act 1971. They were not a procedure falling within
Schedule I. They were not governed by
section 12 of the 1971 Act (the requirement to give reasons). As the statutory framework did not require
reasons, the court should not impose that requirement. Reference was made to Lonrho plc v Secretary of State for Trade and
Industry [1989] 1 W.L.R. 525, at page 620 f-g; Bass Taverns Ltd. v Clydebank District Licensing Board, 1995
S.L.T. 1275; JAE (Glasgow) Ltd v City of Glasgow District Licensing
Board, 1994 S.L.T. 1164; Purdon v City of Glasgow District Licensing
Board, 1989 S.L.T. 201, at page 203L to 204D; and the Police Pensions Regulations, Regulation
H2(3).
[67] It was true that the SPPA Guidance suggested that reasons
should be given. But that guidance
formed no part of the statutory framework.
The guidance did not have the effect of instituting a mandatory
requirement. Where the guidance
suggested that reasons be given, that was simply a counsel of perfection. There was in fact no need for reasons.
[68] Counsel then referred to Carr v UK
Central Council for Nursing, Midwifery and Health Visiting, 1989 S.L.T.
580. The medical referee was in effect
acting as a professional jury. Even
although there was a right of appeal, it was not necessary to state
reasons. In Dundee United Football Co
Ltd v Scottish Football
Association, 1998 S.L.T. 1244, at page 1244F, it was said that where
there was a right of appeal, that could be seen as an argument in favour of
giving reasons. In the present case,
there was expressly no right of appeal.
In Thomson, petitioner, 1989 S.L.T 343, at page 345C-D, Lord
Dervaird accepted that a requirement to give reasons was not part of any principle
of natural justice. In Lawrie v Commission for Local Authority
Accounts in Scotland, 1994 S.L.T. 1185, at pages 1189H-J, 1190E-F,
1191I-1192H, Lord Prosser accepted that natural justice did not require the
giving of reasons. Having regard to the
character of the decision-making, the kind of decision being undertaken, and
the statutory framework in the present case, counsel submitted that Lord
Prosser's dicta applied, and the principles of natural justice did not
require the giving of reasons.
[69] Counsel concluded by inviting the court to repel the first
plea-in-law for the petitioners and to refuse the petition.
Opinion
Written submissions
[70] Written submissions are not mandatory: Schedule H, paragraph 4 of the Police
Pensions Regulations 1987 (quoted in paragraph [39] above). Nevertheless once Mr Houston had produced a
12-page submission outlining his position, it was open
to the medical referee to invite a written response from the Force, bearing in
mind the terms of paragraph 6 of the SPPA General Guidance to Medical Referees:
"... Each party
must be given a reasonable opportunity to present their arguments and to
comment on the submissions (written and oral) made by the other."
[71] In this particular case, Mr Houston wished to see the
Force's written response to his submission.
He asked Dr Downie for a copy, pointing out that he would not
otherwise have fair notice of the position being adopted by the Force. In the circumstances, it was perhaps
unfortunate that the Force were not invited to submit a written response. The lack of a written submission from the
Force made the fair conduct of the appeal hearing all the more important.
Interview with Mr Houston alone
[72] In my view, Dr Downie was entitled to carry out a medical
examination of Mr Houston in private.
In terms of paragraph 8 of the SPPA General Guidance, "The Regulations
provide that the appeal hearing, including any interview or medical
examination, may be attended by the selected medical practitioner (SMP)
and any duly qualified medical practitioner appointed by either party ... If such
medical practitioners wish to attend, you must allow them to do so at
all stages of the appeal, including any examination." In the present case, the selected medical
practitioner Dr Wilson was not insistent that he should be present
throughout the medical examination of Mr Houston. In such a situation, the medical referee was
in my view entitled to conduct all or part the medical examination of the
appellant without any other person being present. It was however all the more important that
there should subsequently be a fair appeal hearing at which parties could lead
evidence, ask questions, and make submissions.
The
departure of the two officers from the appeal hearing
[73] The crucial issue for determination by the
medical referee was whether Mr Houston's depression was work-related and
therefore "an injury sustained in the execution of his duty".
[74] Mr Houston's contention was that his work circumstances,
including increased workloads, reduced staffing levels, unachievable work
targets, public rebukes, and other similar matters largely arising from
management policies and procedures, had caused his depression.
[75] The Force, on the other hand, refuted that contention. If such matters were to be explored in the
course of the appeal hearing, the Force wished to have an opportunity to
present "a more balanced perspective than that which Mr Houston ...
portrayed."
[76] In such circumstances, paragraphs 6, 13, and 17 of the SPPA and
Home Office Guidance (quoted in paragraph [39] above) were particularly
relevant. There was a sharp dispute in
fact, going to the core of the cause of the pursuer's condition. It was clearly important that each side should
be given an opportunity to present their case at the appeal hearing, a
fortiori as the medical referee had received a written submission from Mr Houston
but not from the Force.
[77] What occurred on 19 December
2003 was the hearing of one side only. As will be seen from the facts which I found
proved (noted in paragraphs [28] to [38] above), I accept that Chief Inspector
Wilson expressly stated at the appeal hearing that he had some comments to make
on management issues, given the opportunity.
I reach that view as not only did the chief inspector give evidence to
that effect, but so did Mr Houston, who was particularly alert to the
possibility of having to deal with late submissions about management issues
from the Force (as his requests for advance written notice had proved
fruitless). Despite the chief
inspector's specific statement that he wished to present the Force side of the
case, he was never given an opportunity to do so, for, as matters developed
(noted in paragraphs [33] to [37] above) what occurred was not an express
instruction by Dr Downie that the chief inspector and Mr Dick should
depart, but rather a series of assumptions, misunderstandings and failures in
communication, ultimately leading to a breakdown in procedure.
[78] In my view, it was incumbent upon Dr Downie, as the master
of the proceedings, not to remain silent when Mr Dick and the chief
inspector were apparently voluntarily leaving.
Dr Downie had a duty to attempt to clarify what was happening, by,
for example, expressly asking each of the departing officers to state his
position and intentions. Waiver of a
right to attend, to lead evidence, to ask questions, and to make submissions,
is too important a matter to be left to inference and nuance. Bearing in mind the clear terms of paragraph
17 of the Home Office Guidance, and paragraph 6 of the SPPA Guidance, a medical
referee must make every effort to "ensure that each party provides [him] with
the clearest possible evidence in support of their case [and] allow each party
to comment on the other's evidence"; also to give each party "a reasonable
opportunity to present their arguments and to comment on the submissions
(written and oral) made by the other".
If a party appears to be waiving his opportunity to attend the hearing,
or to present evidence or argument, the medical referee should in my view
specifically explore the situation to ensure that the party has not
misunderstood matters, and is not labouring under a misapprehension. A referee cannot necessarily assume that a
party has a clear understanding of what is happening. Nor can a referee necessarily assume that a
party will properly explore or analyse matters for himself, as formal hearings
tend to engender a respectful silence which is not conducive to interventions.
[79] Accordingly, even taking into account the special and unique
features of police pensions appeal procedure, all as described in Strathclyde
Joint Police Board v McKinlay, 2005
S.L.T. 764, what occurred in this case was a failure to give the Force an
opportunity to provide the medical referee "with the clearest possible evidence
in support of their case [and to allow the Force] to comment on [Mr Houston's]
evidence". What occurred was a failure
to give the Force a "reasonable opportunity to present their arguments and to
comment on the submissions (written and oral) made by [Mr Houston]". Standing the lack of a written response by
the Force, it was all the more important that the medical referee heard oral
evidence and/or argument from the Force.
In my view therefore, there was a procedural failure which can be
defined either as a breach of the SPPA or Home Office Guidance, or as a breach
of the fundamental principle of natural justice audi alteram partem.
[80] Counsel for Mr Houston suggested that the Summary of
Issues which the chief inspector was proposing to read at the appeal hearing
did not amount to a rebuttal of Mr Houston's 12-page submission, and did
not contain facts central to the issue.
In my view, that is no answer to the petitioners' argument. The Force were
entitled to an opportunity to present their evidence and arguments, which would
not necessarily be restricted to the Summary of Issues. It cannot be asserted that the medical
referee would have been completely unaffected by the Force presentation and
submission.
Conclusion
[81] In my view, Mrs Swanson was correct in her contention that
there was a breach of duty (ii) - the duty to allow both parties an opportunity
to present their case. That is
sufficient for the resolution of this petition and it is unnecessary for me to
give a view in relation to the other duties prayed in aid on behalf of the
petitioners.
Decision
[82] For the above reasons, I shall sustain the petitioners' first
plea-in-law, and in terms of paragraph 3(1) of the petition, reduce Dr Downie's
decision that Mr Houston's condition was the result of an injury received
in the execution of duty. I reserve all
questions of expenses to enable parties to address me on that matter. I should add that in my view it would be
appropriate that Mr Houston's case be referred to a different medical
referee (possibly a consultant psychiatrist) who would be able to take a fresh
view of the case, particularly as Dr Downie has now retired from practice.
