In The Petition Of D.b. For Judicial Review Of A Medical Certificate Issued Under Gulation H2(3)of The Police Pensions Regulations 1987 And Answers Fo
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2012] CSOH 164 |
| Date | 16 October 2012 |
| Docket Number | P801/10 |
| Published date | 06 November 2012 |
| Court | Court of Session |
| Year | 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 164 | |
| P801/10 | OPINION OF LORD STEWART in the Petition of D B Petitioner; for Judicial Review of a Medical Certificate issued under Regulation H2(3) of the Police Pensions Regulations 1987 and Answers for FIFE COUNCIL, as Police Authority Respondents ________________ |
Petitioner: Clancy QC, C Smith; Balfour & Manson LLP
Respondents: Carmichael QC; Biggart Baillie LLP
16th October 2012
[1] The petitioner served as a police officer with Fife Constabulary from 6 November 1997. In May 2002 she was posted to serve as a detective constable with CID Special Branch in the port unit at Rosyth. The petitioner's perception is that difficulties with police colleagues and with the management of the force from 21 December 2002 onwards caused her to have mental health issues. In April 2004 she was transferred to other duties. In mid‑November 2005 the petitioner went on sick leave. More than two years later, on 23 January 2008, a medical practitioner selected by the police authority, Fife Council, found that the petitioner was "from a psychiatric point of view" permanently disabled from performing the ordinary duties of a member of the police force [report by Dr Alex D Scott, consultant in occupational medicine, No 6/1 of Process]. The petitioner was medically retired on 5 April 2008. The petitioner thus became entitled to a police ill‑health pension. As to the cause of the petitioner's disability and whether the petitioner was entitled in addition to a police injury award, on 16 April 2008 the selected medical practitioner reported [report by Dr Alex D Scott, No 6/2 of Process]:
"... many of the symptoms which DC [D B] now suffers, and which are severe, are the result of the 'grievance procedure', rather than having been caused by the work situation... I cannot support her application for an injury on duty award."
The phrase "injury on duty award" has a certain significance which I shall return to later: but the immediate point is that the petitioner was thus not eligible for a police injury award.
[2] The petitioner appealed against the "injury on duty" decision to a Police Medical Appeal Board. The appeal board was made up of a consultant occupational health physician (chair), an occupational health physician and a consultant psychiatrist. The appeal board's view of causation took account of the medical and other evidence presented and also of the clinical assessment performed in the course of the hearing by the consultant psychiatrist appeal board member. By its determination dated 19 March 2010 the appeal board rejected the petitioner's appeal and found that the petitioner's permanently disabling condition had not been caused by "an injury sustained in the execution of duty". The petitioner thus remained ineligible for a police injury award. The petitioner now challenges the determination of the Police Medical Appeal Board dated 19 March 2010 by way of judicial review.
[3] The appeal board's report quotes the Police Pensions Regulations 1987; and the petition refers to "judicial review of a Medical Certificate issued under Regulation H2(3) of the Police Pensions Regulations 1987". I understand that the determination ought to be expressed as having been made under the new dispensation, namely Regulation 31 of the Police (Injury Benefit) (Scotland) Regulations 2007. Counsel tell me that there is no substantive difference between the relevant provisions of the 1987 Regulations and the 2007 Regulations. I shall proceed on that basis. Counsel who appear in this judicial review are Mr Clancy QC with Ms Smith, advocate, for the petitioner and Ms Carmichael QC for the police authority, Fife Council. The police authority have lodged answers as "persons having an interest" - they have to pay Fife Constabulary police pensions and injury awards - but it is easier to call them "the respondents". None of the other parties on whom the petition was served has lodged answers.
[4] Having heard submissions by respective senior counsel on 1 and 2 December 2011 and having made avizandum I have formed the opinion that the petition is not well‑founded and should be refused. Put shortly my view is that the appeal board reached a proper conclusion within its decision-making powers while expressing the conclusion using legal terminology that I would regard as mistaken and derived from misinterpretations of the scheme. To put it another way, the appeal board erred in law but the error was not material. There is in my view nothing to be said for reducing the appeal board's decision to allow the appeal to be re‑heard.
[5] As to the cause of the petitioner's condition, the appeal board found that:
"... absolutely critical to the development of a prolonged stress reaction was [the petitioner's] disagreement with the decisions made by management at every stage in the complaint process as it evolved. This included being dissatisfied when management decided to allocate her to what she regarded as dead end or out of the way jobs.
It is the Board's view that [the petitioner] could not reconcile within herself the fact that management took a different view of the complaints to her. This, the Board believe, is the sole origin of [the petitioner's] subsequent disabling condition."
The reference to "complaints" is a reference to a formal grievance lodged by the petitioner in 2004, relating to the 2002 incident, and to a number of preliminary and satellite complaints and claims. On the legal question the appeal board concluded:
"The issues to do with involvement in a grievance process [...] is not [sic], in the Board's view to do with the service of an officer. Involvement in a grievance process is in the Board's view to do with simply being an officer as it is not inextricably linked with duty. It is, like a disciplinary process, a process that is collateral to the actual duties of an office [...] In the Board's view the argument that a grievance process constitutes duty because the subject of the grievance may relate to duty events is unconvincing [...] a subjective reaction to management decisions that are disagreed with is unlikely to be regarded as an injury received in the execution of duty."
[6] There is no suggestion that this appeal board failed to ask itself the right question. The issues which the appeal board proposed for determination were formulated as follows:
"The key medical consideration for the Board to determine is to establish the cause of the [petitioner's] disabling condition and thereafter to determine whether that cause (or those causes) can legitimately be regarded as an injury received in the execution of duty".
The approach adopted by the appeal board was to dispose of the several matters for determination as one composite issue. If I have a difficulty with the appeal board's determination of the facts it is that the findings do not address distinctly the question whether there was anything that "can legitimately be regarded as an injury received" and if so when that injury was received. There is however, as I shall explain below, sufficient in the board's findings to infer that, in the view of the appeal board, the petitioner did not at any material time "receive an injury" as that concept should be understood within the meaning of the Police (Injury Benefit) (Scotland) Regulations 2007.
Background to the claim
[7] The petitioner is the daughter of a retired police chief superintendent who had served with Fife Constabulary. She was born on 8 August 1966, making her 39 at the date of her last attendance for police duty in November 2005. She is an accomplished individual who appears to be a foreign languages honours graduate. After graduation she initially worked for the Foreign and Commonwealth Office on intelligence duties with a high level of security clearance [Consolidated Tribunal Claim, 6/5 of Process, § 9]. She then moved to work for local government in Fife. She moved from there to work for a whisky company in Edinburgh. After that she taught English as a foreign language in Spain and France. In 1997 she joined Fife Constabulary at the age of 31. In 2002 she was appointed to CID Special Branch, Rosyth, as one of the team servicing the new ferry terminal.
[8] On Saturday 21 December 2002 the petitioner's three male shift colleagues, by her account, went for a long lunch leaving her to do all the work involved in checking the passengers for the imminently departing ferry to Zeebrugge. The petitioner was unable to complete the work of four people and the ferry sailed without full checks having been carried out. The petitioner reported the matter to the officer in charge of the Special Branch port unit. She felt that her concerns were not taken seriously. The appeal board determination continues:
"Complaints made by [the petitioner] escalated over time and were investigated with increasing formality but [the petitioner] contends that management did not ever respond appropriately to her concerns. In addition [the petitioner] describes experiencing increasing relationship difficulties at work, feeling marginalised by her colleagues. Ultimately [the petitioner] was moved to work in other locations after April 2004, something she expressed dissatisfaction about.
In November 2005 [the petitioner] became absent from work at a time when she was pregnant. At that point the general practitioner certified her with a stress related illness that he viewed as being work related. Subsequently [the petitioner] was diagnosed as having a mixed anxiety and depression disorder and thereafter a depressive episode requiring anti-depressant treatment.
[The petitioner] contends that the work circumstances that she faced were the cause of her permanently disabling condition and that these work circumstances should be viewed as execution of duty incidents and that therefore an injury on duty award should be allowed."
The appeal board's reference to pregnancy has the following...
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