United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D McCARTHY (of Counsel) Instructed By: Messrs Hanne & Co Solicitors St John's Chambers 1C St John's Hill London SW11 1TN
For the Respondent	MR I MacCABE (of Counsel) Instructed By: Mr D Wagstaff Messrs David Wagstaff & Co Solicitors 19 The Avenue March Cambridgeshire PE15 9PS


 


MR JUSTICE NELSON:

1. This appeal is against the unanimous decision of the Employment Tribunal at London South of the 13th July 2000 when it found that the Appellant was not disabled within the meaning of the Disability Discrimination Act 1995.
2. The Appellant contended that he suffered from post traumatic stress disorder, a mental impairment as defined under schedule 1 of the Act. The Employment Tribunal found that he was not suffering from any mental impairment and hence that it was unnecessary for them to consider the further questions under the Act, namely whether his condition had a substantial and long term adverse effect on his ability to carry out normal day to day activities.
3. The Tribunal found that the Appellant saw service in the Coldstream Guards in Cyprus in 1974 when he observed a friend being killed and also some Greek policemen being shot. Subsequently he did tours of duty in Londonderry and in Belfast, the last being in 1982 where he witnessed shootings and deaths.
4. As a consequence of these experiences he had flash backs and intrusive memories of the violence that he had witnessed but these did not prevent him getting on with his job or his day to day life. Nor did they cause him to visit his GP until 1999 in relation to problems of either post traumatic stress disorder or depression. He described to the Tribunal as an example of the problems he experienced an occasion when he had been driving his bus and heard a pneumatic drill which reminded him of machine gun fire. For a few moments he froze but thereafter was able to carry on driving his bus. He also had to take steps to avoid reading newspapers and watching the news on television in case he should see further violence. He had nightmares occasionally but "soldiered on".
5. The Tribunal found that in 1995 he was found weeping in Stockwell garage. Friends recommended cannabis to him and from then on he smoked cannabis, began drinking more regularly and became a binge drinker. It was in part his alcohol abuse which led him to seek medical advice about his symptoms in 1999.
6. The Appellant was seen in February 1999 by Dr Amanda Owen, a staff grade psychiatrist at the Mayday University Hospital. She diagnosed post traumatic stress disorder with a co-morbid alcohol and drug dependant syndrome. This diagnosis was made in accordance with the diagnostic criteria set out in the 10th Edition of the International Classification Directory of Diseases (ICD-10) developed by the World Health Organisation. In June 2000 the Appellant was seen by Dr Paul Bailey, a consultant psychiatrist instructed on behalf of the Respondents, who concluded that whilst the Appellant had experienced post traumatic stress symptoms his condition did not warrant a diagnosis of post traumatic stress disorder according to the diagnostic criteria set out in the Diagnostic and Statistical Manual of Mental Disorders 4th Edition (DSM-IV) developed by the American Psychiatric Association. Dr Bailey was of the opinion that the Appellant's post traumatic stress symptoms were increased in severity by his depression and alcohol and drug misuse. The fact that he had been able to continue active duty in the army and to sustain employment in civilian life without difficulty until at least 1994 was incompatible with a diagnosis of post traumatic stress disorder under DSM-IV.
7. Both these doctors gave evidence before the Tribunal. There was in addition a report from Dr O'Connell, a consultant psychiatrist, dated the 29th June 2000 which considered the medical reports and commented upon them without any examination of the Appellant. Dr O'Connell concluded that the Appellant had post traumatic stress disorder with co-morbid disorders of depression, alcohol dependence and substance abuse.
8. Dr O'Connell, who was not called to give evidence, noted that the ICD-10 is the classification recognised by the government within the NHS. He pointed out that it was well established that the late onset or delayed recognition of PTSD was not uncommon as was recognised in the acknowledged literature on the matter. He found the psychic numbing noted by Dr Owen, to be one of the key features of PTSD.
9. The difference between the two classifications of ICD-10 and DSM-IV is of importance in this case. Dr Bailey expressed the view in his report that ICD-10 used somewhat subjective and woolly definitions and said that he used the more sharply defined DSM-IV which was the considered the bench-mark standard in medical research and medico legal reporting. Both classifications require the witnessing of or exposure to an exceptionally threatening or catastrophic event or situation involving for example, actual or threatened death which evokes intense fear, helplessness or horror and is likely to do in almost anyone. Both classifications also require recurrent, repetitive and intrusive recollections but there are distinctions between the two sets of diagnostic criteria. Firstly DSM-IV requires the disturbance to cause clinically significant distress or impairment in social, occupational or other important areas of functioning which ICD-10 does not, and secondly ICD-10 states that generally the disorder should arise within 6 months of the traumatic event whereas DSM-IV has no time limit but expects the medical reviewer to specify if the onset of symptoms is at least 6 months after the stress or event.
10. An important difference therefore is the requirement for significant distress or impairment in function. Neither classification has a mandatory 6 month time limit; even though ICD-10 states that the disorder should not generally be diagnosed unless there is evidence of the disorder within 6 months, the onset can be longer than 6 months provided that the clinical manifestations are typical and no alternative identification of the disorder, such as a depressive episode, is plausible.

The Tribunal decision.

11. The Tribunal noted that mental impairment under schedule 1 of the Act included an impairment resulting from or consisting of a mental illness only if the illness was a clinically well recognised illness, and that the code of practice expanded that to say that a clinically well recognised illness was one recognised by a respected body of medical opinion. The Guidance issued by the Department for Education and Employment under the Act states that it is very likely that a respected body of medical opinion would include those specifically mentioned in publications such as the World Health Organisations International Classification of Diseases. Thus, as the Tribunal states in paragraph 3 of its decision, post traumatic stress disorder is a clinically well recognised illness included in ICD-10.
12. In paragraph 24 of its decision the Tribunal states:-

"Dr Bailey had quoted DSM-IV whereas Dr Owen had quoted ICD-10. We examined both of those, of course, as laymen and it appeared to us that the differences between the two definitions were not significant in our overall view of the case."

13. The Tribunal concluded having studied ICD 43.1, i.e. ICD-10 that what Mr Blackledge had observed during his military service would meet the definition of an experience of an exceptionally threatening or catastrophic nature and could effect somebody such as himself who had no predisposing factors. They went on to state that there was however little evidence that it had interfered with his way of life to a marked extent as he had held down continuous employment and once his depression had been treated he seemed to become symptom free. The Tribunal continued:-

"the interval of 12 - 14 years between his last tour of duty and any real difficulties seem to us to confirm Dr Bailey's opinion that whilst he had experienced post traumatic stress symptoms these did not warrant a diagnosis of post traumatic stress disorder."

14. The Tribunal therefore concluded that Mr Blackledge was not at the relevant time disabled within the meaning of the Act.

The Submissions

15. The Appellant's case is that the Tribunal's decision was perverse in both its main conclusions and in its approach. Firstly it conflated the two sets of diagnostic criteria and as a consequence applied the wrong test. Secondly its effective conclusion that his condition had not interfered with his way of life to a marked extent as exemplified by the fact that he had been able to continue in work and that there had been an interval of 12 - 14 years between his last tour of duty in 1982 and any real difficulties in 1994 - 1996 was contrary to the evidence before them and indeed their own findings. Thirdly if and in so far as they did find that he did not exhibit symptoms within 6 months of the date of the trauma that finding was also against the evidence which established an early onset of symptoms, but in any event there was no proper basis for applying a 6 month time limit. It is submitted by the Appellant that the evidence was so clear that the EAT should substitute its own finding and declare that the Appellant was suffering from a mental impairment.
16. The Appellant also raised an alternative ground of appeal, namely that the Tribunal should have found that the Appellant suffered from depression if he did not suffer from post traumatic stress disorder and that therefore on any basis a finding of disability should have been made. We are satisfied that this alternative argument is not open to the Appellant as the matter was not raised before the Tribunal, no evidence was directed to that issue, and it would therefore be inappropriate for us to deal with it now.
17. The Respondent submits that whilst the Tribunal may have erred in saying that the difference between the two diagnostic tests was not significant their conclusions cannot be described as perverse as they listened to the experts, tested their evidence and decided that they preferred Dr Bailey. They therefore concluded that the Appellant was not suffering from a disability but, in accordance with Dr Bailey's view, depression with the intervention of alcohol and drug abuse. The test under ICD-10 was failed because the Appellant did not establish that his symptoms started within 6 months of the traumatic events and also because he failed to satisfy the Tribunal that he was suffering from post traumatic stress disorder at the time of his dismissal. Such illness as he then had was not post traumatic stress disorder and even if it was depression he had, on the evidence, no impairment when he was dismissed. He did not satisfy the DSM-IV test because he was able to keep down his job for all those years.

Our Findings.

18. We are satisfied that the Tribunal's failure to recognise the difference between the two sets of diagnostic criteria renders their decision fatally flawed. They stated wrongly that the differences between the two definitions were not significant in their overall view of the case but then went on to rely upon a feature of DSM-IV in order to determine their decision which did not form any part of the criteria under ICD-10, namely the requirement for clinically significant distress or impairment in function. Furthermore in paragraph 25 of their decision they purport to be dealing with ICD-10 (43.1) but then appear to be considering DSM-IV.
19. This is not a simple preference for the evidence of one expert over another expert but a fundamental confusion as to the tests which each of those experts were applying and its significance in their determination of the issues.
20. The Guidance suggests that the definition in ICD-10 represents a respected body of medical opinion and as the evidence before the Tribunal was that ICD-10 is the classification recognised by the NHS, it is difficult to see how that classification was not used by the Tribunal in determining whether there was a mental impairment. The additional requirement in DSM-IV of clinically significant distress or impairment in functioning seems to us to be more relevant to deciding the effect on function which a mental impairment has rather than deciding whether a mental impairment exists under section 1 of the Disability Discrimination Act.
21. There is no dispute on the evidence before the Tribunal that the Appellant's condition came within the classification of ICD-10 subject to the reservation which Dr Bailey expressed as to the time constraints. Because of their conflation of the two tests however, the Tribunal did not consider whether the 6 month time limit should apply or whether there was any other alternative disorder such as a depressive episode which was a plausible explanation for the condition. Nor therefore did they consider whether the 6 month time limit, if applicable, had been satisfied on the evidence.
22. Dr Bailey had noted in paragraph 7.1 of his report that Mr Blackledge began drinking shortly after his experiences in Cyprus, that is from 1974 onwards, in part to nullify painful and intrusive recollections of combat experience. What was meant by "shortly after" was not established by Dr Bailey but Mr Blackledge's account, if accepted, does suggest that the time constraint may well have been satisfied. Furthermore there was evidence to suggest that time constraints could be regarded flexibly under both classifications provided the diagnosis of post traumatic stress disorder rather than some other condition such as depression could properly be made.
23. The fact remains however that the 6 month time constraint, whether it should apply and the inter relationship if any between post traumatic stress disorder and depression were not considered by the Tribunal. We do not feel that there is adequate evidence before us upon these issues for us to make our own determination.
24. The Appellant's contention that on the evidence before it the Tribunal should in any event have concluded that the more stringent test under DSM-IV was also satisfied and that their finding to the contrary is perverse has on its face some force in view of the finding that Mr Blackledge had occasional nightmares and was unable to read newspapers or watch the news on television in case he should see further violence. These problems do not appear to have been limited to a particular period but continued from 1982 onwards including the 12 - 14 years referred to by the Tribunal. Nevertheless the Tribunal heard the evidence as a whole and were able to weigh it and we are not satisfied that their finding on this can be said to be perverse.
25. On the evidence as it stands at present in relation to the time constraints under ICD-10, their applicability and in particular the relevance of any depressive episode or other alternative diagnosis for post traumatic stress disorder we do not feel able to substitute a finding of our own that the Appellant suffered from mental impairment.
26. In these circumstances it is necessary for the matter to be remitted for a re-hearing upon this and all allied issues. We are satisfied in the circumstances that the matter should be remitted to a fresh Tribunal which must consider, amongst other things, whether there is a mental impairment under ICD-10, whether the 6 month time constraint is applicable and if so satisfied, whether there is any plausible alternative disorder to PTSD, such as depression and whether, if there is mental impairment, such impairment was present at the time of dismissal. The Tribunal should also consider whether, if the Appellant suffered from depression at the relevant time, such depression itself amounted to mental impairment. If the Tribunal finds mental impairment and then considers the question of substantial long term adverse effect on normal day to day activities, it must bear in mind that it is the not the function of the medical practitioner to give an opinion on either the adverse effect of day to day activities or whether any such effect is substantial. (Vicary -v- British Telecommunications plc [1999] IRLR 680).
27. We therefore allow the Appellant's appeal and order that the matter be remitted to a fresh Tribunal for re-hearing.