"(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".

In relation to procedure, the regulations are required by section 6(1) to make provision as to the court or other person by whom appeals are to be heard and determined in the case of any person who is aggrieved by the refusal of the police authority to admit a claim to receive a pension, or a larger pension than that granted. Section 6(3) provides:

"(3) 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."

"Compulsory retirement on grounds of disablement

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."

The expression "permanently disabled" is defined by Regulation A12:

"Disablement

A.12.-(1) A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at that time likely to be permanent.

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

"Reference of medical questions

H1.-(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the police authority.

(2) Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions -

(a) whether the person concerned is disabled;

(b) whether the disablement is likely to be permanent;

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

(c) whether the disablement is the result of an injury received in the execution of duty, and

(d) the degree of the person's disablement;

and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

...

(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."

Regulations H5 and H6 provide a right of appeal, to the Sheriff Court (in the case of Scottish police officers) or to a tribunal (in the case of certain specified officers) respectively, where a claimant is aggrieved by the refusal of the police authority to admit a claim to receive as of right an award or a larger award than that granted. In such a case, Regulation H3 applies:

"Further reference to medical authority

H3.-(1) A court hearing an appeal under Regulation H5 or a tribunal hearing an appeal under Regulation H6 may, if they consider that the evidence before the medical authority who has given the final decision was inaccurate or inadequate, refer the decision of that authority to him for reconsideration in the light of such facts as the court or the tribunal may direct, and the medical authority shall accordingly reconsider his decision and, if necessary, issue a fresh certificate which, subject to any further reconsideration under this paragraph, shall be final.

(2) The police authority and the claimant may, by agreement, refer any final decision of a medical authority who has given such a decision to him for reconsideration on fresh evidence, and he shall accordingly reconsider his decision and, if necessary, issue a fresh certificate, which, subject to any further reconsideration under this paragraph or paragraph (1), shall be final.

...

(4) In this Regulation a medical authority who has given a final decision means the selected medical practitioner, if the time for appeal from his decision has expired without an appeal to a medical referee being made, and the medical referee, if there has been such an appeal."

Subject to Regulation H3(1), the final decision of a medical authority is binding in any proceedings under Regulation H5 or H6, in accordance with Regulation H7(2).

"Refusal to be medically examined

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 -

(a) if the question arises otherwise than on an appeal to a medical referee, the police authority may make their determination on such evidence and medical advice as they in their discretion think necessary;

(b) if the question arises on an appeal to a medical referee, the appeal shall be deemed to be withdrawn."

" Medical Appeals

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 -

(a) the selected medical practitioner; and

(b) any duly qualified medical practitioner appointed for the purpose by either party.

6. The medical referee shall give written notice to the police authority and the 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."

"The vast majority of the consultation was spent by him describing the circumstances of his numerous disputes with Strathclyde Police over the years. Although some of these were long since in the past he still continues to describe them in an emphatic, involved way. He explained that over the course of his career he had numerous complaints made against him by members of the public mainly complaints of assault. His explanation for this is that he saw himself as being vigorous in the arrest and restraining of suspects. He was at the lower end of the limit for the height qualification for getting into the police and saw himself as being potentially at risk if he did not defend himself. He is an ex-boxer and somewhat pugnacious by nature. He contrasted his own behaviour with that of other officers whom he had known and whom he believed would have taken the easy option and let the offender suspect escape if it was likely to lead to problems if apprehended.

His disputes with Strathclyde Police arose because he clearly saw himself as being a thorn in their flesh and he believed that they at times treated him unjustly. In retaliation he admitted that he would make frivolous requests in order to cause annoyance. For example at one point he made application to join the pipe band.

He claimed that those officers in the past who had either thwarted his own ambitions, told lies about him or generally 'done him down' had been subsequently promoted. When I specifically asked if he was making this as a humorous, ironic comment he told me unequivocally that was not the case and that he believed these other officers had been promoted because they had thwarted him and it was a reward from Strathclyde Police for having done so.

Having been reinstated in 1999 he told me that 'I won over my shift' and by that he meant he had obtained the support of his colleagues by his behaviour at work after his reinstatement. At that point he asked to join the Support Unit but that was refused. His general battle with Strathclyde Police continued after that and he eventually again went off on sickness leave a year ago. He told me that this was because of 'stress' but when I asked him about some specific anxiety or depressive symptoms apart from some difficulty at times in sleeping he had no formal symptoms.

There is a large file documenting his various arguments over the years with his employers, he has contacted his MSP and has had to employ a lawyer on his own behalf (perhaps consistent with his general theme he dismissed the police federation lawyers as being 'useless').

Personal History

...

Although he was in good terms with his mother until her death, he is estranged from the rest of the family partly because of his behaviour when he was gambling.

...

Past Psychiatric History

Describes a long term compulsive gambling problem which disrupted much of his financial and social life when he was younger including at one stage personal bankruptcy. However he has controlled that addictive behaviour with the help of Gamblers Anonymous and obtained the spur to do so nine years ago at the time of his disputed resignation letter.

Mental State Examination

At the consultation he presented as a casually dressed, fit looking man. He always talked animatedly and vehemently about his disputes with his employer and the various complaints that had been made against him. He regularly approaches newspapers when he is in a dispute with his employer in order to inform them and when I asked questions about the usefulness of that he became quite heated.

He further demonstrated the single-mindedness of his thinking by telling me 'If I see a wrong I do something about it'.

The only humour shown during the consultation was when he told me about his application to join the police pipe band.

Opinion

The medical issue here is whether Mr Rooney's behaviour in his relationship with his employer is a result of mental illness or just 'bloody mindedness'.

On balance in my opinion he is ill. That judgement is based on both his objective appearance with me and the way in which he described his pursuit of his own personal vendetta against Strathclyde Police, some of the overvalued ideas he held within that topic and the fact that his single minded pursuit of this has been to his considerable social and personal disadvantage over the past few years. The formal diagnosis would be of a Paranoid Personality Disorder. (He would many years ago have been regarded as a 'paranoid litigant'). As a result of that condition I do not think he is medically fit to continue serving as a police officer. That medical disability is likely to be enduring and the corollary of that would therefore be that he would fulfil the pension requirements for medical ill health retirement. In my opinion his working conditions have not caused his illness or contributed to it. Rather the reverse: his illness has seriously interfered with his working capacity and his ability to make give and take relationships with an employer."

The references in that report to the petitioner's "disputed resignation letter", and to his reinstatement in 1999, concerned a particular dispute which had arisen in 1993 when the petitioner submitted his resignation from the police, and subsequently sought to withdraw his resignation. When the Chief Constable refused to accept the withdrawal of his resignation, he brought proceedings for judicial review of that decision, which were eventually concluded in his favour. He was then reinstated.

"The essence of this case is a cycle of conflict dating back over many years which Dr Worral explains in terms of paranoid personality disorder.

Although Constable Rooney's appetite for conflict and litigation apparently knows no bounds, he is I think at the same time worn out by this and would welcome a mechanism for exiting without further conflict.

I am advised that his conduct has been such that disciplinary measures could have been invoked which would have been likely to result in his discharge from the Force. The management view however is that he is a vulnerable individual whose machinations are ultimately self defeating and they would like to see a humane termination of his career if this is possible. I would support this view.

Having received Dr Worral's report, I have recommended medical discharge. Mr Rooney undoubtedly feels that his service as a Police Officer has been damaging but Dr Worral addresses this issue very specifically, saying that it is his illness, which has affected his relationship with his employer rather than the other way round. I can concur with this line of thinking and have not recommended an injury award."

Dr Warnock enclosed with his letter a copy of Dr Worrall's report, the petitioner's occupational health record, and a copy of a report prepared by himself.

"Mr Rooney appears to have had many problems at work, which have been ongoing for some time now. Over the last year he has been particularly anxious and agitated when discussing his work problems and also has a long history of previous depression. I would certainly agree that, from what I know of Mr Rooney, there is a degree of personality disorder involved here but I am unable to comment as to whether this amounts to paranoia as I only have his side of the story, so-to-speak to go on as to what happened at his work.

I have seen Mr Rooney many times over the last couple of years and his mental health is not improving at all. I would agree that he is no longer fit for work in the police force and I think the only route to go down now is ill-health retirement."

Dr Watt subsequently issued a certificate dated 5 July 2003 in which he gave his decision on the matters referred to him:

"I find [the petitioner] disabled by a medical condition from performing the duties of a police officer.

The disablement for the normal activities of a police officer by reason of personality disorder is likely to be permanent.

The condition is not the result of an injury received in the execution of duty."

"Over the years he had a number of complaints made against him generally for assaults in which he had to defend himself ... In all, over the years he was charged with assault about 6 or 7 times and he was always found to be not guilty in court and was fully vindicated.

...

In 1993 he tendered his resignation from the Police while under a great deal of stress. At the time he had three charges of assault hanging over him. His flat was being repossessed and he was facing bankruptcy because of debts incurred due to a gambling problem.

After speaking to a friend he tried to withdraw his resignation just a few days afterwards, the Strathclyde Police refused to accept it.

Since then he has regularly attended Gamblers Anonymous, which is still a very big part of his life. He has not had a bet for almost 11 years and as a result he has gradually built up his life."

Dr Stewart gave the following opinion and prognosis:

"OPINION

This man gives a history of longstanding conflict with Strathclyde Police. On two occasions this led to Court cases with regard to withdrawal of his resignation in 1993 and payment of tax following reinstatement. Both of these Court actions were successful.

It is evident he has had difficult relationships with his superior Officers but he has on the whole had good appraisals. He is very keen to be considered fit for Police duties again. He has however been certified unsuitable by reason of a medical condition, namely personality disorder which is considered to be permanent.

On examination today I could not detect any evidence of psychosis. In addition I am not convinced that he has paranoid personality disorder.

It is likely however that on a retrospective diagnosis he was suffering from moderately severe major depression in the Summer of 2002 following the death of his mother and his close friend. At present he is no longer in the clinically depressed range and indeed from the MADRAS score has fully recovered.

I have however only seen him on his own and although I asked him to bring a relative or friend he did not do so. It is essential therefore to discuss with the nominated relative or friend Mr Rooney's personality prior to joining Strathclyde Police in 1979, throughout his Police career and since he has been on sick leave.

It would be helpful if you could discuss with Mr Rooney the name of a suitable nominated relative or friend to whom I could speak by telephone. In addition it would be useful to talk Mr Rooney's General Practitioner to obtain his views on his personality.

PROGNOSIS

While Mr Rooney presented well and showed no evidence of psychosis or personality disorder I am concerned about his return to work because of his history of problems with Strathclyde Police in the past. He has however shown evidence of resilience of spirit and I do not agree with Dr Worrall's opinion that he could be regarded as a paranoid personality, paranoid litigant which would refer to someone showing multiple futile Court actions. In fact, based on my information, there have been only two Court cases and in both he has been successful.

It is my opinion therefore that on the basis of my examination without reference to a relative, friend or his General Practitioner that he should be given one further final opportunity to be considered for reinstatement to ascertain whether he could make a positive, useful contribution to the work of Strathclyde Police. I would expect that given his determination and grit they could be utilised in the course of his duties with Strathclyde Police and he becomes less confrontational, there is the probability that he could be found a niche where the determination to return to the Force could be deployed for its benefit. In this context it is noted that if he was satisfactorily confronted his problem with pathological gambling (sic) and he has in addition recovered from moderately severe major depression.

In summary it is my opinion therefore that he should be given one further final opportunity for reinstatement with re-training and further re-assessment after a probationary period. He should therefore in my opinion be given the benefit of the doubt and allowed to return to service with Strathclyde Police but the responsibility is his to make a success of it."

Finally, Dr Stewart expressed the view that the petitioner did not fulfil the criteria for a diagnosis of paranoid personality disorder. Before this court, counsel for the petitioner informed us that Dr Stewart had not spoken to any relative or friend of the petitioner, as he had wished to do. It was accepted that Dr Stewart's report was to that extent provisional.

"3. I assessed Mr Rooney on 9^th April 2003. I had the benefit of a report from Dr P Warnock, Senior Occupational Physician for Strathclyde Police Force Occupational Health and Welfare Unit and reports written by Dr Ernest Worrall, Consultant Psychiatrist dated 23^rd January 2003 and by Mr Rooney's General Practitioner, Dr Fiona Davidson, dated 16^th May 2003.

4. Dr Warnock, Dr Worrall and Dr Davidson recommended that Mr Rooney be discharged from the Police Force on the basis of permanent ill health caused by personality disorder.

5. Mr Rooney related to me difficulties that he had faced at work involving a Crown Office Report and his application to join the Support Unit. He felt he had been treated unfairly. He felt he was being closely supervised at work behind his back. There had been disagreement with his superiors that preceded his absence from work. He was concerned that he had had insufficient help for his gambling problems. He had not had counselling following duty at a Road Traffic Accident while others had. He felt badly treated and was intent on suing the Police Force.

6. I could not identify a work event that could be regarded as causative of Mr Rooney's problems. It was likely in my view that his behaviour and personality were the causes of the difficulties he faced. He had mental health problems that were likely to continue for the foreseeable future and until his normal retirement age. On this basis I recommended discharge from the Police Force on the grounds of personality disorder but did not conclude that an injury on duty had occurred."

In addition to the medical reports, Dr Patience was also provided with submissions prepared by the solicitors acting on behalf of the petitioner and the respondents. It was contended on behalf of the petitioner, on the basis of Dr Stewart's report, that he was not suffering from a personality disorder. It was further asserted that, in any event, the petitioner's condition was not permanent and was capable of resolution by "the appropriate treatment"; but no material appears to have been put forward in support of that assertion, or to indicate any form of treatment which might be appropriate. The submissions were largely concerned with the plethora of previous disputes between the petitioner and Strathclyde Police. It was common ground at the hearing of the present appeal that it was unnecessary, for present purposes, to consider the submissions in detail.

"At the outset of the Hearing Dr Patience effected introductions and he advised that he would be questioning me in respect of my condition. He advised that the purpose of the Hearing was to ascertain whether I was permanently disabled from performing the ordinary duties of a Police Officer ... He did not advise me at any time that he was carrying out a formal medical examination. He merely advised me there was a number of questions he wished me to answer.

Dr Patience commenced by questioning me for no more than 25 minutes. The questioning consisted of him ascertaining my personal circumstances, a discussion in respect of my gambling and a further discussion in respect of my work performance and my attitude to work."

The affidavit by the petitioner's solicitor is to similar effect, but also refers to a discussion outwith the petitioner's presence before he was questioned:

"4. ... Mr Blair [the respondents' solicitor] and I explained to [Dr Patience] the format of these hearings as we had attended these on a number of occasions and what we indicated to him was to the effect that he should carry out an examination of Mr Rooney, Dr Watt then be invited to make medical observations, Mr Blair then would be invited to make a statement for the Police Authority and I would make a statement on behalf of Mr Rooney. This discussion involving Mr Blair, Dr Patience and myself took place outwith the presence of both Dr Watt and Mr Rooney.

5. The hearing commenced with Dr Patience introducing himself and focusing on the reasons for our attendance. I have no recollection of Dr Patience saying that he was going to carry out a psychiatric examination of Mr Rooney. He did say that we were there to decide whether Mr Rooney was permanently disabled from performing the ordinary duties of a police officer.

6. Dr Patience then commenced to question Mr Rooney both in respect of his personal circumstances and in respect of his medical history and employment history. That questioning session lasted a period of no more than 25 minutes."

The affidavit by the respondents' solicitor is generally to similar effect, but the questioning is estimated to have lasted longer, and it is described in greater detail:

"Dr Patience began by introducing himself. Dr Patience then explained that the terms of his appointment by the Scottish Public Pensions Agency as medical referee was to determine 'whether or not Mr Rooney is permanently disabled from performing the ordinary duties of a member of the police force' ... Dr Patience emphasised the medical or clinical purpose of the proceedings before him.

Parties then introduced themselves and it was quickly agreed with Dr Patience, on the basis of advice offered by Mr Watson, appearing on behalf of Mr Rooney, and myself, appearing on behalf of the Police Board, arising out of experience obtained by both of us from appearing in similar previous cases before medical referees which we had both attended, the order of the proceedings. The previous earlier cases included several cases where the issue was one of psychological illness and these earlier proceedings before a medical referee had commenced with an examination of the appellant by the medical referee.

Accordingly it was agreed by all parties that:-

·        Dr Patience would first undertake his psychological examination of Mr Rooney.

·        Dr Watt would then be invited to provide medical observations.

·        I would then be invited to make a statement of the Police Authority.

·        Mr Watson would then be invited to make a statement for Mr Rooney.

Dr Patience then proceeded to interview Mr Rooney at some length and in some detail. As a lay onlooker it appeared to me that it was not simply random questioning but had structure, purpose and relevant content to elicit from Mr Rooney information which would further inform Dr Patience's psychological assessment of Mr Rooney. It covered Mr Rooney's life history, gambling addiction, family and other relationships, and personal and private circumstances. This detailed examination of Mr Rooney by Dr Patience lasted for approximately forty to forty five minutes."

Dr Watt states in his affidavit:

"It was my impression at the time that Dr Patience conducted a thorough inquiry. I remember that he made a detailed inquiry into Mr Rooney's background and psychiatric symptomatology. It was my understanding that Dr Patience had a significant amount of detail available to him in advance of the hearing and that this formed part of his assessment."

Dr Patience himself states:

"9. After both parties had put forward their respective positions I then interviewed Mr Rooney for a similar length of time, perhaps about 10 - 15 minutes. This was a pretty standard psychiatric assessment. I believe that I introduced this stage in proceedings by indicating that I needed to ask Mr Rooney a number of questions. Nobody else indicated that they had any difficulty with that.

10. We all remained seated at the table. I then started my assessment, asking Mr Rooney a number of questions. I made 2 pages of notes of the issues that I discussed with Mr Rooney. Mr Rooney was cooperative and was able to answer the questions put to him as part of the assessment. None of the others were involved in that process, although they were present in the room at the time.

11. The assessment itself would have addressed Mr Rooney's personal history including his schooling and early life. I would not have gone through a lot of the uncontentious matters in any great detail as these were all documented in the two psychiatric reports. However, I would have covered issues such as Mr Rooney's sex life as that would be part of taking a routine personal history. I also covered Mr Rooney's police service as this would relate to his more recent and current circumstances and was an issue related directly to the Appeal itself. I certainly discussed with Mr Rooney his gambling problem and I recalled him indicating that he had been declared bankrupt as a consequence of his gambling. All of the issues that I covered in the psychiatric assessment I documented in the notes that I wrote as I went along.

12. I don't believe that I had the psychiatric reports or the occupational health records with me in the meeting. I had read through both the psychiatric reports and the occupational health records prior to the meeting. I had prepared brief notes in advance of the meeting setting out the issues that I would need to cover, but I wasn't making direct reference to either the medical notes or the reports during the meeting itself. I was carrying out an independent psychiatric assessment. This was without reference to the two psychiatric reports. I sued the reports and the occupational health records as background only."

We have been provided with a copy of the three pages of notes taken by Dr Patience at the time. They cover the petitioner's personal history, his past psychiatric history and his past medical history.

"Further to the Medical Appeal Hearing regarding the above named and held at Shawpark Resource Centre on 26 October 2004 I have now been able to consider the information received at the meeting and supplied by the police authority and the appellant.

Personality Disorder is characterised by persistent patterns of behaviour, lifestyle and mode of relating to others which are typically inflexible and represent an extreme or significant deviation from the average individual. It is associated with significant problems in social functioning and performance, and is usually first apparent in late childhood. Mr Rooney is a competitive tenacious individual who has a strong sense of personal rights and attributes events in self referential manner. His history of serious gambling resulting in bankruptcy indicates serious psychopathology suggesting an inability to learn from experience. He demonstrates some insight to his character, reporting himself as the 'most stubborn bloody minded person I have ever met' indicating that he is aware that he is at the extreme for this particular character trait.

There is sufficient information to conclude that Mr Rooney suffers from a Personality Disorder which I do not consider to be treatable.

I consider that he is, as a result of this condition, permanently disabled from performing the ordinary duties of a member of the police force."

The decision of the Lord Ordinary

"When I consider the reasoning in [the letter], I do not find it intelligible in the circumstances of the case and I am of the view that the rest of 'Wednesbury unreasonableness' is met."

In support of that conclusion, the Lord Ordinary identified specific shortcomings in Dr Patience's reasoning, as they appeared to her to be. These focused particularly on Dr Patience's statement that personality disorder "is usually apparent in late childhood", his statement that the petitioner's "history of serious gambling resulting in bankruptcy indicates serious psychopathology suggesting an inability to learn from experience", and the petitioner's length of service.

"I am unable to determine any reasoning which makes sense in the context of a case where it appears that the petitioner, whatever his personality, has in fact performed the duties of a police officer from 1979 to 1993 and from 1999 to 2002. [Dr Patience] appears to proceed on the basis that the personality disorder is not a problem which occurred at or about the time when the petitioner ceased duties as a police officer. He appears to consider that the problem of personality disorder is longstanding and predated and continued during periods when it is not disputed the petitioner was working as a police officer. The first respondent makes no conclusions of fact to the contrary. He gives no further explanation of his reasoning process. It is also not disputed that the petitioner's history of serious gambling ceased in about 1993 and that since that date he has continued to be a non-gambler and member of Gamblers Anonymous. That undisputed history does not support the conclusion that he has an inability to learn from experience. One must question whether the first respondent was aware that the petitioner had ceased gambling and that he had resumed work for a number of years following his cessation of gambling. I consider that, standing the reasons given, the failure to deal with the petitioner's history of cessation of gambling and the performance by the petitioner of the duties of a police officer for some years thereafter is unintelligible. The reference to the problem in social functioning and performance usually first becoming apparent in late childhood is also unintelligible in this case. It is unclear whether the decision maker is making a finding that the petitioner falls within the typical pattern or is atypical. If the former, [Dr Patience] does not appear to take into account that, whatever his personality, the petitioner performed the duties of a police officer from 1979 to 1993 and for a period thereafter."

The Lord Ordinary also considered the contention that Dr Patience had failed to carry out an examination of the petitioner and was accordingly not in a position to form any opinion. She concluded that it would be necessary to hear oral evidence before deciding whether that contention was well-founded. In reaching that conclusion, she referred to the affidavits which we have mentioned, and also to a letter dated 30 January 2006 which was sent, following the commencement of these proceedings, by the solicitors to the Medical and Dental Defence Union of Scotland ("MDDUS"), on behalf of Dr Patience, to the petitioner's solicitors. The purpose of the letter was to inform the petitioner's solicitors that the MDDUS was content that Dr Patience's decision should be defended by the respondents, and that Dr Patience would not therefore be taking part in the proceedings. In the course of the letter, the solicitors wrote:

"We consider that Dr Patience was placed, as is often the case for medical referees under these regulations, in a most difficult position. Dr Patience is of course not legally qualified. The regulations required him to act in a quasi-judicial capacity and to construe complex regulations that have been the subject of repeated litigation in recent years, and to grasp legal distinctions of some nicety ... However, he did not have the benefit of a legally qualified clerk or assessor. He then required to apply the appropriate tests as he understood them to convoluted factual allegations. It remains a matter of concern that legally qualified assistance is not generally provided to medical referees in attempting to reach their decisions in such circumstances."

The letter followed a standard form used by the solicitors in such cases. The passage which we have quoted, in particular, follows a standard form of words. In that regard, we have been provided with a letter sent in another case where the same words are used.

"There are differences in the affidavits which may or may not be significant. In paragraph 9 of the affidavit of [Dr Patience], he states inter alia that during the meeting on Tuesday 26 October 2004 he interviewed Mr Rooney in the presence of others for perhaps about 10-15 minutes. He states 'this was a pretty standard psychiatric assessment. I believe that I introduced this stage in proceedings by indicating that I needed to ask Mr Rooney a number of questions'. He does not state that he informed the petitioner that he was carrying out a psychiatric assessment. The affidavit is silent as to how [Dr Patience] carried out his task in reaching a decision ...

It is important to note that [Dr Patience] does not give any information about how he reached his decision either in [the decision letter] or [his affidavit]. [Dr Patience] explains in [his affidavit] what he considers he was doing at the interview but that is all he explains. Thereafter he received further substantial written information. To add to the difficulty, [Dr Patience's] solicitors wrote the letter [dated 30 January 2006] ...

Even if this was a standard letter, it is issued on behalf of [Dr Patience] and presumably on his instructions. His solicitors are informing the court that [Dr Patience] apparently did not proceed on the basis merely of making his own diagnosis but in some way was applying the appropriate tests to unspecified 'convoluted factual allegations'. In these circumstances, if the contentions in relation to this part of the petition are to be further explored I would wish to hear evidence before considering further submissions."

Discussion

"This plainly indicates that the medical referee is entitled, and perhaps in certain circumstances obliged, to consider fresh evidence. He is certainly entitled to, because paragraph 3 refers to 'such further interviews or examinations as he may consider necessary'. He may be obliged to under paragraph 5 by inference if a duly qualified medical practitioner attends the examination or interview. No doubt such attendance would be and could only be useful if the duly qualified medical practitioner was going to be able to say something."

We respectfully agree with those observations.

"There are, in my judgment, clear indications here that this appeal to the medical referee is a rehearing. It is an appeal from the decision of the police authority themselves, not from an independent decision. The medical referee is the first independent person to consider the matter. This suggests that the appeal should be a full reconsideration, taking account of, but unconstrained by, the previous decision of the selected medical practitioner. It would also in general be odd if a doctor was asked to do other than determine matters of this kind at the time at which he was making the determination.

Schedule H enables the medical referee to receive additional evidence. It would be very odd indeed, I think, if this was only directed to what the position had been at some date in the past. The same, it seems to me, applies to the fresh evidence provision in regulation H3(2).

I do not find what I regard as a literalist submission as to the import of the word 'disagrees' in regulation H2(3) persuasive. You can readily disagree with someone else's decision upon different or additional information, your disagreement being formulated at a later time than the original decision. As the judge said, the questions themselves are in the present tense. The natural meaning, I think, of regulation H2(3) is that the medical referee is disagreeing at the date of his decision."

"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."

"Personality Disorder is characterised by persistent patterns of behaviour, lifestyle and mode of relating to others which are typically inflexible and represent an extreme or significant deviation from the average individual. It is associated with significant problems in social functioning and performance, and is usually first apparent in late childhood."

In this passage, Dr Patience is providing a brief explanation, couched in language accessible to a layman, of the psychiatric concept of a personality disorder. The statement that such a condition "is usually first apparent in late childhood" is not a finding that it was apparent in late childhood in the petitioner's case. Nor is it inconsistent with the absence of such a finding in the petitioner's case: "usually" does not mean "always". We find nothing unintelligible about Dr Patience's explanation. We should add that it was accepted before this court that the petitioner's gambling problem had started at school, as Dr Patience had recorded in his notes of his examination of the petitioner.

"Mr Rooney is a competitive tenacious individual who has a strong sense of personal rights and attributes events in self referential manner. His history of serious gambling resulting in bankruptcy indicates serious psychopathology suggesting an inability to learn from experience. He demonstrates some insight to his character, reporting himself as the 'most stubborn bloody minded person I have ever met' indicating that he is aware that he is at the extreme for this particular character trait.

There is sufficient information to conclude that Mr Rooney suffers from a Personality Disorder which I do not consider to be treatable."

Conclusion