David Ian Sharp v The Chief Constable of West Yorkshire Police The Police Medical Appeal Board (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Judge Behrens |
| Judgment Date | 07 March 2016 |
| Neutral Citation | [2016] EWHC 469 (Admin) |
| Docket Number | Case No: CO/3846/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 March 2016 |
[2016] EWHC 469 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Court House
Oxford Row
Leeds LS1 3BG
His Honour Judge Behrens sitting as a Judge of the High Court in Leeds
Case No: CO/3846/2015
an
David Lock QC (instructed by Ron Thompson) for the Claimant
Ian Mullarkey (instructed by WYP Legal Services) for the Defnendant
Hearing dates: 11 February 2016
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is an application for judicial review of the decision of the Police Medical Appeal Board ("the PMAB") dated 22nd May 2015. On that date the PMAB was reconsidering an earlier decision that it had made on 27 January 2015. Both decisions were to the effect that Mr Sharp was not entitled to be paid a pension under regulation B3 of the Police Pension Regulations 1987 ("the 1987 Regulations"). The PMAB decided that Mr Sharp was not permanently disabled within the meaning of reg A(12) of the 1987 Regulations.
It is common ground that Mr Sharp suffers from a recurrent depressive disorder which at the relevant time was in remission. As will appear in more detail below Mr Sharp is someone who is described by Professor Rix as having a paranoid attitude. He is liable to develop psychiatric disorder under stress. His perception, in one word, is that he has been wronged. It does not matter whether or not he has been wronged. What matters is his perception. But for his attitude, the probability is that his condition would have run a much more benign course. It is, in Professor Rix's view, inevitable that if Mr Sharp returns to work, sooner or later he will become unable to work and unable to perform the ordinary duties of a member of the force.
The core issue in this application is whether the PMAB were right to consider that Mr Sharp is not permanently disabled within the meaning of reg A(12).
Permission was granted on the papers by HH Judge Gosnell on 2 nd October 2015.
Before dealing with the matter it is right that I should express gratitude for the very full skeleton arguments and oral submission I have received from Counsel on both sides. They have been most helpful.
The facts
Mr Sharp was born on 5 th December 1963. He was a serving police officer with the West Yorkshire Police Force for a period of about 15 years from 2 nd December 1996 until he resigned from the service on 4 th November 2011. He was a member of the police pension fund throughout his time in office as a police officer.
Mr Sharp's career as a police officer was characterised by periods when he performed well as a police officer but he also had long periods off work as a result of psychiatric illnesses.
There is no detailed chronology setting out every occasion that Mr Sharp was off work. However a reasonable picture can be obtained from Professor Rix's report.
Mr Sharp suffered from anxiety on a number of occasions before he joined the police. He was in fact initially rejected by the police on medical grounds. In 2000 he was off work for 10 weeks. There were reports of stress in 2001 and 2002 but it is not clear whether he was off work. He was off work for an unspecified period in 2004 and approximately 5 months in December 2005 after the death of his father. He was suffering from stress again in September 2006 and informed his GP that the force was instituting capability proceedings. When he returned to work he was working part time. He was off work again in March 2008 for a period of approximately 7 months. August 2010 was the last time he actually worked for the police. Proceedings were instituted against him and he resigned on 4 th November 2011 the day before the hearing was due to take place.
The application for a pension
On 21 st February 2013 Mr Sharp made an application for an ill health award under reg B3 of the 1987 Regulations on the ground that he was permanently disabled from being able to perform all of the duties of a police officer.
As required by reg H1(2) the Chief Constable referred the decision to "the Selected Medical Practitioner", Dr Dagens.
Dr Dagens's decision is contained in his report dated 12 th November 2013. He met Mr Sharp on that day and had access to his medical records. He recorded a diagnosis of recurrent depressive disorder but noted that Mr Sharp was functioning at a reasonable level in terms of everyday activity. He expressed his opinion in this way:
"In my view there is no clear medical reason to conclude that [Mr Sharp] is permanently unfit for his former employment as a police officer. While he himself feels that he cannot work for his former employer, if his relationship with his former employer were neutral, there would be no medical reason to exclude him from this. I accept the points made by the psychiatrist who previously assessed him and that the nature of recurrent depressive disorder is such that he is of course at risk of further episodes in the future. This in itself however does not equate to permanent disablement as defined by the Police Pension Regulations."
In the result the claim was rejected.
The appeal
On 8 th December 2013, Mr Sharp gave notice of appeal under reg H2 to the Police Medical Appeal Board ("PMAB").
Professor Rix's report
The appeal was supported by a report from Professor Rix, a consultant forensic psychiatrist, dated 2 nd May 2014. The report is some 55 pages long. I have relied on part of it in summarising the periods when Mr Sharp was off work. Various other parts have been referred to by Counsel in the course of their submissions including the following:
"The Appellant has suffered from psychiatric disorder since he was 25 years old. His condition has affected him intermittently. He has had periods when his mental health has been good and he has been able to function normally. He has had periods when his functioning has been impaired and he has been unable to work. Periods of breakdown have been reactive to events and circumstances in his personal life and in his employment." 1
"The appellant suffers from an affective disorder. The emotional disturbances relate primarily to his mood. When his condition first presented … he had mainly anxiety symptoms. With the passage of time his condition manifested as primarily a depressive disorder. His condition has been episodic. Hence … he has a recurrent depressive disorder." 2
"Diagnosis therefore has to take into account the interaction between on the one hand life events and circumstances and on the other hand the person who is exposed to these. This is not the history of someone with a deep-rooted predisposition to mental
disorder which would have manifested at random. This was someone who would develop psychiatric disorder under stress and particularly when he perceived mismanagement, misconduct or wrongdoing. He was someone who did things by the book and expected others to do so" 3"But for the Appellant's attitude, he would have suffered little or no psychiatric disorder. The key to understanding the course of the Appellant's condition is his 'paranoid' attitude… His perception, in one word, is that he has been wronged. It does not matter whether or not he has been wronged. What matters is his perception. But for his attitude, the probability is that his condition would have run a much more benign course and would not have been an obstacle to a life-long career in the police." 4
"Although the Appellant is at this moment well-enough to resume the ordinary duties of a member of West Yorkshire police, (hypothetically if he was to return to work) it is only a matter of time before his attitude will interact with management approaches resulting in the development of a mental infirmity and an inability to work as has happened repeatedly already" 5
"It is inevitable that if the Appellant returns to work, sooner or later he will become unable to work and unable to perform the ordinary duties of a member of the force" 6
"The Appellant's core disablement is his attitude. Someone with a recurrent depressive disorder and no underlying personality [sic] can function successfully for the rest of their life. There will be no disability. Having regard to the Appellant's core attitudinal problems, it will be only a matter of time before he finds that he has hit the buffers." 7
The final two paragraphs of the report were relied on by the PMAB and were as follows:
"The primary issue appears to be whether or not the Appellant is permanently disabled. Critical to this is the Appellant's vulnerability. That vulnerability is his paranoid attitude. This is a permanent feature of his character or personality. It is when that attitude engages with management, as inevitably it would, that the Appellant would suffer a recurrence of his depressive disorder and be unable to perform all of the ordinary duties of a police officer.
It therefore appears to me that the issue for the Board will be whether or not such vulnerability in itself amounts to a permanent disability for the purposes of the Regulations."
Dr Dagens's letter
On 2 nd July 2014 Dr Dagens submitted a further letter in which he made the point that when he saw Mr Sharp in November 2013
..."… there was no clear medical reason to conclude that he was permanently unfit for his former employment as a police officer. While he himself felt that he could not
work for his former
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