NOTE by SHERIFF G W M LIDDLE

 

in the causes

 

MCAVOY (A11/05)

RENNIE (A3225/04)

MURPHY (A5084/04)

MCFARLANE (A3222/04)

MCINTOSH (A2845/04)

INGRAM (A5719/05)

MCNAIRN (A1257/06)

FAGAN (A1680/06)

MUIR (A2942/06)

DIN (A5276/04)

 

PURSUERS

 

against

 

SCOTTISH MINISTERS

 

DEFENDERS

 

 

 

Act: T. Kelly, Solicitor

Alt: A. Kelly, Solicitor

 

 

 

 

EDINBURGH, 27 June 2008

 

Background

[1] Two chambers motions for decree in McAvoy v Scottish Ministers and Rennie v Scottish Ministers on the basis of respective tenders and acceptances thereof came before me for consideration. These were two of many personal injury cases raised in Scotland seeking awards of damages arising out of prison conditions and the effect of those conditions on the pursuers. They are commonly referred to as "slopping out" cases due to the then practice of prisoners requiring to undertake lavatory activities using a vessel within their cells and to later deposit the contents elsewhere. In both of the actions there was an application for the certification of Dr. Kevin Irvine as a skilled witness. Neither motion had been opposed. In neither case was there lodged a copy of any report prepared by Dr. Irvine. I did not consider that I had sufficient information before me to enable me to decide whether to certify Dr. Irvine as a skilled witness whom it had been necessary to employ to make investigations in order to qualify him to report and/or give evidence in the actions (paragraph 1 of Schedule 1 to the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992 as amended).

 

[2] Following an exchange of correspondence between the sheriff clerk and the solicitors for the pursuers, a hearing on the motions was fixed for 22 April 2008. The motions did not proceed far on that date because it became clear that a considerable amount of time, not then available, would be required. Furthermore, by then another nine processes had accumulated eight of which had motions for decree and the certification of Dr. Irvine as a skilled witness. The eight motions were opposed. Hitherto the defenders had sought to challenge Dr. Irvine's reports before the Auditor after certification had been allowed. That had been unsuccessful before the Auditor, who had said that any challenge to certification required to be taken at the time certification was sought before the court. On 12 May 2008 I heard argument which continued to and was concluded on 21 May 2008. In the ten cases finally before me for consideration there were motions for certfication. On the penultimate day, on my prompting, there were copies of Dr. Irvine's reports lodged in all but two of the cases. Although on practically identical grounds to the others, the motion for decree in Mair (A3785/05) did not seek certification of Dr. Irvine as a skilled witness but merely decree in terms of the minute of tender and acceptance. No report was lodged in that case. Decree in that action has been awarded. It was argued by the defenders and conceded by the pursuers that the vast bulk of each report was practically identical. There was, however, separate information in respect of medical histories relating to each respective pursuer's medical report. It was agreed between both parties that I should deal with all the cases together. Given the same cause of action, slopping out, and the similarity of the respective reports, I considered it was appropriate to deal with all the cases together. Accordingly, although I discuss the differences between the cases, such as those differences were, this decision is determinative of all eleven cases.

 

Dr Irvine's qualifications

[3] Dr. Irvine describes himself as a 'medico-legal consultant'. Academically he is qualified as a Bachelor of Medicine and Bachelor of Surgery and a Bachelor of Laws. His post graduate qualifications are:- Diploma of the Royal College of Physicians (1981), Diploma of the Royal College of Obstetricians and Gynaecologists (1984), diploma in Forensic Medicine (1991) and he became a Fellow of the Royal College of Physicians (2001). Dr. Irvine's hospital experience runs from general medicine to medical paediatrics, obstetrics and gynaecology, clinical assistant in diabetes and back to general medicine in 1984. He was a registrar in general practice and claims to be currently a principal in general practice. He was a part-time medical officer between 1984 and 1990, which he places under the banner of 'prison medicine'. He has been a police surgeon since 1988. He claims to have made many court appearances as a professional and expert witness and says he is listed in the UK register of expert witnesses and the Law Society of Scotland directory of expert witnesses. Dr. Irvine has no formal qualifications in psychiatry or psychology and appears never to have had any such qualifications.

 

The reports

[4] As I was told in submissions, Dr Irvine's reports chronologically divide into two styles that he used. There is an earlier style used by him around 2004 and a later style used from about 2006. It is clear that the vast bulk of each report is broadly similar to the others of its time and genre. No clinical examination at all is carried out in relation to any pursuer. There is generally said to have been a review of medical records comprising GP and/or prison medical records. It is not in every case that each has been seen and considered. It is sometimes said by Dr Irvine that he considered such records "where available". The matter might be of little moment because in no case is it asserted that any physical condition that Dr Irvine may have been qualified to opine upon gave rise to the claim made. Put shortly, Dr Irvine purports to prepare a psychological medical report in each instance.

 

[5] The argument before me focussed mainly on the reports relating to the two original cases before me, namely Rennie and McAvoy. This discussion principally covers those cases though it extends to all the cases before me. Dr. Irvine's report in Rennie, though fuller than most, is an example of the earlier style. Dr. Irvine's report in McAvoy is an example of the later style.

 

Earlier style

[6] The contents section of the Rennie report lists: 1. Introduction, 2. The issues addressed, 3. Investigation of the facts (which includes medical examination), 4. Analysis, Commentary and Opinion (which includes the physical, psychiatric and psychological harm suffered) followed by a glossary of medical terms and qualifications and experience of the author. At paragraph 1.04 of the report under the heading 'Summary of my Conclusions', it is stated in bold lettering: "This report concludes that Mr. Rennie is likely to have experienced psychological symptoms as a result of the conditions of his imprisonment." Paragraph 1.5 sets out that Mr Rennie is the subject "of this medical report". At paragraph 2, Dr. Irvine states that the main issues addressed in the report are the conditions in which Mr. Rennie was held in HMP Saughton and the impact these conditions had on his physical and psychological wellbeing. At paragraph 3, Dr. Irvine lists the documents he used as a statement from Mr. Rennie, a letter from the instructing solicitors and photocopies of prison medical records. It is stated at 3.01 that the GP records were not reviewed and that Dr. Irvine interviewed (the emphasis is mine) Mr. Rennie at Saughton on 2 July 2004. At paragraph 3.08, in summary, it is noted that, prior to the relevant dates of imprisonment (listed later) Mr. Rennie suffered from depression, asthma and skin condition. Mr. Rennie's complaints about aspects of prison conditions, including slopping out, are noted in paragraphs 3.11 to 3.18. It appears clear that these paragraphs contain a history taken from Mr. Rennie. However, at paragraph 3.13 it is noted that Mr. Rennie found the process of slopping out to be humiliating, embarrassing and degrading and said the process made him depressed. I emphasise these words because they arise again and again in the various reports although one might not expect them usually to be within every prisoner's vocabulary. They do, however, feature in Lord Bonomy's judgement in Napier v The Scottish Ministers 2004 SLT 555. Notwithstanding what was stated in the introduction, nowhere in this section is there any indication of any sort of medical examination taking place. Though he would not be qualified to do so, there is no indication that Dr. Irvine applied any diagnostic tools in assessing whether Mr. Rennie suffered from any psychological condition.

 

[7] Section 4 of the report is the most extensive. It is partly taken up with factual information in relation to slopping out and mostly taken up with summarising some of the various expert opinions presented to the court in Napier (supra) and the opinion of Lord Bonomy. At paragraph 4.07 of Dr. Irvine's report there is discussion of the evidence given to that court by an environmental psychologist who opined that the conditions in that case were more debilitating and dehumanising than could reasonably be expected for imprisonment. There is a sub-heading in the report: "The Physical and Psychological Harm Suffered". Paragraphs 4.13 and 4.14 relate to skin condition and asthma and conclude that there is no evidence that the conditions of Mr. Rennie's imprisonment caused deterioration of either condition. Paragraph 4.15, under the sub-heading "Psychiatric", concludes that there is no evidence the conditions of imprisonment caused any recurrence or deterioration in Mr. Rennie's depressive illness. Paragraph 4.16 rather curiously extends what is purported to be the history of complaint from Mr Rennie at paragraph 3.13. It is in the following terms: "The prison conditions could be described as dehumanising (the emphasis is mine) and as a result Mr Rennie experienced a number of psychological symptoms; shame, disgust, loss of self esteem, low mood, anxiety, tension and anger. He felt he was made to feel inadequate and worthless. Paragraph 4.17, Summary of Conclusions, is in the following terms: "This report concludes that Mr Rennie experienced psychological symptoms because of the conditions of his imprisonment".

 

[8] The other two reports of this genre relate to David Murphy and Neil McFarlane. Both have identical wording to Rennie at paragraph 1.04 anent summary of conclusions. They are also identical in paragraph 1.05 save for the subject of the report. In both cases Dr Irvine considered a statement from the subject, letters of instruction and prison medical records. Paragraph 2 in each is identical to Rennie. Paragraph 3.13 in Murphy is very similar to Rennie save for the subject viz: "He found the whole process to be humiliating, embarrassing, and degrading and he claims the whole slopping out process made him depressed". In McFarlane any history of how the subject felt as a result of slopping out is absent. In both Murphy and McFarlane there is a more expanded look at Napier (supra) and the expert evidence presented to Lord Bonomy. In each report it is concluded that no physical or psychiatric harm resulted from incarceration. At the end of Murphy there is an expansion of 'psychological symptoms' that includes degradation, humiliation, loss of self esteem, low mood, anxiety, tension and anger. There is no summary of conclusions. In McFarlane, where the history was absent, there is listed: humiliation, loss of self esteem, low mood, degradation and embarrassment.

 

[9] In each of the earlier reports Dr. Irvine relies very heavily on the respective pursuers as medical historians. As noted above, the same symptom describing words appear again and again if in different order. There is a dearth of anything that might be described as in the prisoners own words.

 

Later style

[10] The 'Contents' section of McAvoy and the other later reports is the same as the earlier ones. Section two follows the same pattern as in the earlier reports. It is said that the subject has been interviewed to ascertain if he experienced any psychological symptoms as a result of the conditions of his detention. It is said that the prison medical records and GP records (if available) have been reviewed to determine whether the subject has suffered any physical or psychiatric harm. Section three is expanded compared with the earlier reports. It discusses medical history, personal history, dates of imprisonment, general conditions within Saughton prison, and slopping out conditions. With the exception of McAvoy, where a great deal of information is provided in relation to medical conditions, notwithstanding there was routine review of medical records and the results provided in the reports, there is generally very little subsequently said under each heading of medical, psychiatric and psychological.

 

[11] Dr. Irvine does concede in the reports that he has no formal qualifications in psychiatry. He then goes on to assert that the bulk of psychiatric disturbance in the general population is seen not by psychiatrists but by GPs. In some of the reports, though with no formal qualification or appropriate examination or assessment carried out by him, Dr. Irvine takes a history of depression or low self esteem and, there being no recorded history of psychiatric condition in the medical records, transports these complaints into psychological categorisation. Ultimately, in no instance is there any conclusion that any of the pursuers suffered from a medical or psychiatric condition attributable to the defenders. Under the heading 'psychological' there are mere bullet points for each pursuer. The words used can be found peppered through the reported case Napier (supra). "Embarrassment" features in all the reports. Variously there is also: humiliation, degradation, dehumanisation, demeaning, loss of self esteem, loss of dignity, depression and anxiety. No diagnostic tool is applied in reaching any of these conclusions. More than in the earlier reports, Dr. Irvine repeats and relies on the qualified expert psychiatric and psychological opinion in Napier (supra). In each of the reports, towards the end of section 4 under the sub-heading 'Psychological Disturbance' Dr. Irvine sets out:

"When formulating my opinion with respect to psychological symptoms I have used my 21 years of experience of General Practice where psychological disturbance such as anxiety and depression or adjustment disorder is most commonly encountered.

I have also used my previous experience in Prison Medicine and as a Forensic Medical Examiner.

I have read several papers and publications relevant to this subject and where appropriate I have made reference to them in this report. I have also read the Expert Testimony and Judgement in Napier and have my own experience of personally interviewing more than 120 prisoners on this subject.

When determining it (sic) psychological harm has occurred or psychological symptoms have been experienced as a result of the particular conditions of detention in this case I have taken into account the following factors...."

In each case Dr. Irvine concludes that the subject of the report experienced psychological symptoms because of the conditions of his incarceration.

 

Pursuers' submissions

[12] I was addressed at length by the pursuers' solicitor. He referred me to a number of decisions where the question of certification had been considered. None of these supported the proposition that a witness should be certified as an expert for a discipline in which he had no formal qualifications. I was referred to the opinion of Lady Smith in Fallon v Lamont (Unreported, 13 July 2004) where, considering the appropriate rule in relation Court of Session procedure she said: .."it is not appropriate to certify a witness as a skilled witness unless (a) it was necessary to instruct that witness, (b) he was a person of relevant skill and (c) he made investigations in order to qualify himself to give evidence.". It was argued before me that it was necessary to employ a skilled person, Dr. Irvine was a skilled person and he made investigations in order to qualify him to report and give evidence. I was referred to Allison v Orr 2004 SC 453 where the First Division was reviewing the decision of a Temporary Judge and held that it had been necessary to employ an actuary but not an employment expert. The opinion of the court was delivered by Lady Paton. I was referred to paragraph [38] of that decision where the court was dealing with the question of whether settlement at a low level was relevant in taking into account whether it was reasonable to employ an expert. It was the view of the court that the appropriate point in time at which to test the necessity of instructing an expert witness is the time when the witness was instructed. It was therefore inappropriate for the judge of first instance to take into account a factor which could not have been know at that time, namely that the action would ultimately settle at a certain sum. With reference to Nelson v Fife Council (unreported Lord Reed 20 December 2001); Snelling v Thomson Alarms (Unreported Temporary Judge Coutts 12 June 2003; and Allison (supra) it was submitted on behalf of the pursuers that, for certification, there required to be a technical point that cannot be answered without evidence from a skilled witness. It was argued that where the court is dealing with issues which it is well used to resolving from its experience, from matters within judicial knowledge and from matters routinely dealt with in submissions, certification will not readily be granted because the expert adds nothing to the task which the court can undertake. It was argued that on the other hand, where one has an account of the pursuer which is capable of being accepted then the reasonably prudent solicitor would look to where the court would derive assistance. In the instant case, it was said, having regard to the potential solatium claim, at least, the court would expect assistance from a medical expert: the expert added something to the matter at hand. I had some difficulty with that argument given that Dr. Irvine's reports seemed directed towards causation.

 

[13] Dr. Irvine's reports ex facie are medical reports. They purport to be psychological reports. However, it was put to me in submissions that Dr. Irvine was, in fact, an expert in 'the reception of and treatment of persons received into prison custody'. It was not suggested that there was any other such expert in existence. I was eventually referred to Napier (supra) and to the opinion of Lord Bonomy at paragraphs [75], [76] and [78]. There Lord Bonomy discussed the slopping out procedures and the petitioner's response to that regime.

 

[14] It was argued that Dr. Irvine was a particularly suitable skilled witness because he had experience and knowledge of the conditions that existed in Barlinnie prison, and that similar conditions existed in Saughton prison at the material time. As a medical officer dealing with prisoners in such conditions, his knowledge was more relevant than that of someone who had merely visited a prison such as the Chief Inspector of Prisons who gave evidence in Napier (supra). Dr Irvine had impressive qualifications and experience and had advised the instructing solicitor that he was unaware of any other GP in Scotland who held qualifications as a F.R.C.P. and LL.B. While it might be said that Dr Irvine relied heavily on what was said by the experts and Lord Bonomy in Napier (supra), those considerations do not detract from the work carried out by Dr Irvine into the circumstances of each case. He supports his findings by reference to the expert evidence in Napier (supra). The excerpts from Napier (supra) may be looked at in the same way as reliance upon research in the field. Dr Irvine did not seek to present the views of the experts in Napier (supra) as his own but to show that they were supportive of his own opinion about the conditions of the pursuers' incarceration and the effect on their physical and psychological health. In his conclusions he based his opinion, analysis and comment on his own reading of the literature and authorities named in the reports including the references set out in the Initial Writ as well as his interviews with the pursuers. It was no surprise that his conclusions were similar in many of the reports because many of the pursuers would perceive their conditions of incarceration to be degrading or humiliating. It was not surprising they discussed similar symptoms and that the reports came to the same conclusion. Dr Irvine had advised that he had read no medical evidence or heard any evidence throughout his work to date to suggest that such conditions of incarceration were anything other than humiliating, embarrassing and degrading. A symptom is a subjective perception of illness. It followed that a psychological symptom can only be substantiated by the subjective description of the pursuer himself.

 

Defenders' submissions

[15] The defenders submitted that the lack of medical analysis or supported opinion in Dr Irvine's reports demonstrated that he could not be regarded as a skilled person. No proper investigations were conducted. The reports being of little or no medical value should not be regarded as necessary. I was referred to paragraph 19.62 of Macphail, Sheriff Court Practice, where the question of whether a person was skilled is discussed. It was submitted that Dr Irvine should have certain medical knowledge of which men of ordinary intelligence are not likely to be familiar. It had become unavoidable, it was said, that Dr Irvine had not demonstrated the requisite skill and expertise to produce investigations and reports which could be of assistance to the court. There were serious deficiencies in the professional standard of his reports. In Allison (supra) the First Division drew the distinction between a witness who had only general knowledge of a subject and a skilled expert with considerable knowledge of the matter in dispute. The court noted that an employment consultant with general expertise in employment could not "add to what the court can do", and that even if that consultant studied all the relevant information and records of the pursuer, he would be in no better position than a judge before whom all the evidence would have been led to assess promotion prospects. It was submitted that the reports of Dr Irvine added very little, if anything, to what the court already had at its disposal. The conclusions of Dr Irvine (not a qualified psychologist) on the psychological condition of the pursuers was founded entirely on the subjective self-description of the pursuers themselves and supported by no further analysis or enquiry. It was submitted that, on the evidence of the reports in question, Dr Irvine did not possess the necessary skill or expertise to properly inform the court about causation and had not endeavoured to do so.

 

[16] Reference was made to Macphail (supra) at 19.36 where he states that the person must have made investigations prior to the proof in order to qualify him to give evidence thereat. Dr Irvine reviewed documents already available to the court in addition to interviewing the pursuers. He did not take the opportunity to perform any kind of medical examination or tests on the pursuers. His conclusions that the conditions of detention contributed to psychological symptoms were unsupported by any medical evidence or psychological tests specific to the respective pursuers. The anecdotal averments of fact reproduced in the reports added nothing of medical value and did not demonstrate the type of investigation which should be undertaken by a medical expert. The quality of the reports was so low that they could not have withstood examination at proof. They would have been of little or no assistance to the court. Dr Irvine ought not to be regarded as a skilled witness within the context.

 

Conclusions

[17] Dr Irvine is qualified as a medical general practitioner. He will have knowledge and skill that, in appropriate circumstances, entitle him to be regarded as a skilled witness within the context of a GP. He would be entitled to draw upon the literature of other in that field in which his expertise lies, as was accepted in Main v McAndrew Wormald Limited 1988 S.L.T. 141. However, Dr. Irvine's field of expertise is general practice. Psychiatry and psychology are separate and distinct disciplines with separate and distinct qualifications. Dr Irvine does not possess such qualifications. He could offer the court nothing more than it already had access to in relation to those matters outwith his field of practice. Commenting on reported cases such as Napier (supra) is of no assistance.

 

[18] Dr Irvine does have first hand knowledge and experience of prison conditions and prison regime. All of the pursuers have similar knowledge and experience along with any number of others such as prison officers. No doubt Dr Irvine could give factual evidence to the court in this regard but that would not qualify him as a skilled witness. Dr Irvine has taken interviewed the pursuers and what might be described as a summary of what the pursuers said to him is contained in each report. That is nothing more than the court would have were evidence to be led from those pursuers. Dr Irvine has, according to his reports, reviewed Napier (supra) and other literature but such documents were available to the court. It is perhaps instructive to note that in Napier (supra) there was indeed experts' medical, psychological, scientific and technical evidence led as well as informed opinion evidence from those with special experience of prison conditions i.e. Prison Inspectors. In Napier (supra) at paragraph [9], Lord Bonomy discusses a report from Thomas Andrew Markus thus:

"When the petition first came before Lord McFadyen, he considered a report by Thomas Andrew Markus, Emeritus Professor of Building Science at the University of Strathclyde, in which he expressed opinions about the inadequacy of both sanitary arrangements for the petitioner and the time which he could spend out of his cell, and also described the cell itself as grossly inadequate in living space, lighting and ventilation. That report was compiled following a visit to the cell on 1 July 2001. Thereafter those acting for the petitioner instructed others to consider lighting and ventilation in more detail. Before me the evidence of Professor Markus was confined to issues relating to the size and layout of the cell and its furniture. His discipline was architecture. However, when he went to the University of Strathclyde in 1966, he took with him the Building Performance Research Unit, which he had set up in his previous post earlier that year and which was a multi-disciplinary unit studying how buildings "performed" physically or from the social sciences point of view or economically, and so on. On the team was a psychologist David Canter, whose evidence I will deal with later. Within that unit the first steps in developing the discipline of environmental psychology were taken. Markus has maintained an interest in that discipline, but is not a psychologist. Part of his evidence related to "crowding", which is a psychological concept. It relates to the impact on individuals of excessive occupation of, or activity in, a given space. In that connection, he also referred to certain American Literature. I have left that part of his evidence out of account, since Professor Markus did not claim current expertise in the field."

Later, at paragraph [38], Lord Bonomy considered the evidence of Professor David Canter. He was noted as having a current interest in investigative psychology while still maintaining an active interest in environmental psychology. He explained to the court that he had not tried to carry out a thorough psychological assessment of the petitioner to the full extent of climbing into the petitioner's head and giving an account of exactly what he was experiencing. Rather, he had worked out the likely impact on people in general. Lord Bonomy attached no weight to any conclusions Professor Canter appeared to draw about the actual impact on the petitioner and went on to say that that did not undermine the conclusions he drew about the features of the conditions in C Hall [Barlinnie] that were likely to have an adverse impact on the mental state of a person such as the petitioner. Lord Bonomy went on to note that that evidence had been unchallenged.

 

[19] The circumstances surrounding Dr. Irvine stepping outside his area of expertise bear resemblance to the circumstances of Professor Markus in Napier (supra). The approach of Lord Bonomy was to exclude from consideration that part of Professor Markus' evidence in which he strayed outwith his field of expertise. Lord Bonomy's approach is highly persuasive and I find myself in complete agreement with it. Essentially, those parts of Dr. Irvine's reports that relate to psychology ought to be ignored by the court for want of expertise. That leaves nothing of worth. Dr Irvine made no clinical assessment of any pursuer and has no medical conclusion in support of any of the pursuers' claims. Dr. Irvine takes up some space in his reports on the subject of psychiatry. He makes no attempt to reach any conclusion in the field of psychiatry supportive of any of the pursuers' claims and was not qualified to have done so. All of the reports placed before me post-date the decision in Napier (supra). One need only look at Napier (supra) to discover the likely origin of Dr. Irvine's comments qua psychiatry. Indeed, it appears, that one need look no further than Napier (supra) to discover the likely origin of almost all of what Dr. Irvine puts forward. It seems clear that, on the back of the Napier (supra) decision, and borrowing heavily from it, Dr Irvine set out to produce medical reports of a particular type, namely psychological reports. Unlike Professor Canter though similar to Professor Markus in Napier (supra), Dr Irvine held no relevant qualification to do so. He was not a psychologist. Accordingly, given that Dr. Irvine carried out no medical or clinical examinations in support of his reports and given that he lacked the requisite expertise and skill to entitle him to report or give expert evidence in the field of psychology, I refuse to certify him as a skilled witness in the circumstances.