R (Merseyside Police Authority) v Police Medical Appeal Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 23 January 2009 |
| Neutral Citation | [2009] EWHC 88 (Admin) |
| Docket Number | Case Nos: CO/7812/2007, CO/8734/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 January 2009 |
[2009] EWHC 88 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cranston
Case Nos: CO/7812/2007, CO/8734/2007
John Bassett (instructed by Merseyside Police Force Solicitors) for the Claimant
Martin Westgate (instructed by Russell Jones and Walker) for the Interested Parties
Hearing date: 27 November 2008
Mr Justice Cranston :
INTRODUCTION
1. In addition to a retirement pension, the police officers in this case have been awarded a gratuity and an injury pension on the grounds that their permanent disablement was the result of an injury received in the execution of duty with the Merseyside Police. For both police officers, Kevin McGinty (“Mr McGinty”) and John Hudson (“Mr Hudson”), the interested parties in this case, this was determined by the defendant, the Police Medical Appeal Board (“the Board”). The Board allowed their appeals from decisions of the “selected medical practitioners” in their respective cases. It is agreed that both Mr McGinty and Mr Hudson are permanently disabled from performing the ordinary duties of a member of the police force. With each the disablement has resulted from a psychiatric condition, although in the case of Mr McGinty the condition followed a physical injury when he was exercising his police dogs. However, the claimant in the present judicial review, the Merseyside Police Authority (“the Police Authority”), challenges the Board's determination that the respective disablement of each was received in the execution of duty. This concept – “received in the execution of duty” – should be capable of easy application. In the first instance, decisions on the matter have to be made by medical practitioners. Then appeals are heard by the Board, comprised of doctors, not lawyers. Unfortunately the case law suggests that the doctors making decisions on the application of the concept are not finding the matter straightforward.
BACKGROUND
(a) Mr McGinty
2. Mr McGinty was a police officer serving as a dog handler. He had two dogs, a German Sheppard and a Labrador. He received an annual dog handler's allowance. As explained in a national agreement reached in the Police Negotiating Board in 2000, this allowance was payable to police officers to compensate them for caring for police dogs on rest days and public holidays. The allowance was incorporated in the Police Regulations 1995, 1995 SI No. 215, as amended, r. 58(1) and Schedule 10 (“the Police Regulations 1995”). Mr McGinty was also given the benefit of the so-called kennel hour allowing dog handlers to finish their shifts one hour earlier in recognition of the work of caring for a dog. Before the Police Negotiationing Board the official side noted that the common practice of the kennel hour should continue to be honoured. In the agreement there was acceptance of the official side's proposal. It had taken advice from the National Canine Defence League, that the time commitment for caring for a dog was one hour a day plus 15 minutes for grooming twice a week. The staff side unsuccessfully proposed much higher allowances, with the justification that the practice of officers caring for police dogs was cost effective in that forces did not have to maintain kennels and specialist staff, response times were reduced and there was an enhanced relationship between handler and dog. As for annual leave, there was no mention in the agreement, but regulation 10(3) of the 1995 Police Regulations provided:
“For the purposes of this regulation and of Schedule 10 a member of a police force shall be treated as keeping and caring for a dog at his home if he would be so doing but for his being on annual leave.”
3. In March 2002 Mr McGinty was injured from a fall when he was exercising his two police dogs. He was on annual leave at the time. He had released the dogs from his vehicle off the lead and to catch up had started to jog, his normal practice as it enabled him to maintain fitness while exercising them. He suffered a broken foot and ankle. Although he returned to work in a different capacity in September that year, he failed to make a full recovery. He developed a complex regional pain syndrome, a recognised complication with this kind of injury, and he also suffered reactive depression. An occupational health physician, acting as a selected medical practitioner, certified that Mr McGinty was permanently disabled from the ordinary duties of a police officer but that his disablement was not the result of an injury received in the execution of duty. McGinty appealed that decision. On the standard form, “Appellant's Statement of Grounds of Appeal”, he wrote:
“At the time of the injury I was in the execution of my duty as a dog handler exercising two police dogs for which I was paid an allowance.”
4. The appeal was heard by the Board in June 2007. By majority the Board decided that the injury was in the execution of duty and they remitted the matter to the selected medical practitioner to determine the degree of disablement. During the Board hearing, Mr McGinty's position during annual leave was explored. If he wished, he could place the dogs in kennels at the police force training centre. However, if he did not he would be expected to exercise the dogs himself. The Board recorded the Merseyside force's policy that if he did not exercise them, “he would not be disciplined if this was merely for a day or two as a result of, for, example, ill-health”. It seems implicit that he would be disciplined if the failure to exercise the dogs was not for some such good cause. The Board also recorded a number of points made by the Police Authority: it accepted that exercising a dog is part of the bonding between dog handler and dog; if the dog handler is off sick, the dog has to be handed back either to another handler or to the police kennels to ensure that it continues to be exercised; only a police dog handler is allowed to exercise a dog so that, on annual leave, it would not be possible for a spouse or family member to do that; and were the dog to be in a police kennel, it would be exercised by an appropriately trained kennel maid. After referring to the decision of R (Edwards) v Police Medical Board [2005] EWHC 1788 (Admin), the Board said that it had been asked to consider various aspects of case law. Although this did not relate specifically to this type of incident it had been asked to extrapolate. After further discussion the Board then said:
The Board, having reviewed the evidence, had no problems with the medical issues. However, it failed to reach an agreement over whether it was an injury in the execution of duty. Some members of the Board preferred the evidence for an injury on duty as being supported by:
• Only the handler can exercise the dog, the wife cannot exercise it even though the officer is on annual leave.
• If the animal bit a member of the public, the Officer would be subject to a disciplinary investigation even if whilst on annual leave.
• He is expected to care for the dogs’ welfare whilst he is on annual leave for which he is paid an allowance.
The opposing view was that it was not an injury in the execution of duty because:
• He was involved in exercising the dog, not working the dog, i.e. it was for the dog's welfare but it was not being trained.
• He could have put the dogs in kennels and therefore he was not under an order to keep the dogs at home.
• The officer was not carrying out duty activities such as searching premises or people.
• It does not require a police officer to exercise the dog, a police kennel maid (who is not a police officer but is trained to handle dogs) could have exercised the dog, even if the wife could not.
• Rulings after Kellam take that to be the farthest that an injury in the execution of duty can go.
• If Mr McGinty was required to apprehend a felon or prevent a crime, he would have placed himself on duty for this purpose. The fact that he did not would suggest therefore that he was not on duty at the time of the injury.”
As mentioned earlier, the Board could see both sides of the argument but on the majority decision, decided that this was an injury on the execution of duty, fully recognising that because of the closeness of the decision it may well be that the police authority will wish to seek an Administrative review of this decision.
(b) Mr Hudson
5. Mr Hudson joined Merseyside Police in 1976 and was medically retired in early 2004. The circumstances leading to his retirement began with an affair he had in 1999 with a woman police officer. Subsequently he was the subject of an allegation in 2000 in which she claimed that he had been guilty of criminal damage. He was confident that the disciplinary investigation would be resolved in his favour. However, he was transferred and placed on restricted duties. That went on for a period of time. In his view his superior officers sided with her and failed to investigate his own concerns. He found himself sidelined and “sent to Coventry”. The cumulative effect of his work experiences over the period 2000 to 2003 caused him to suffer depression. To the consultant psychiatrists he identified various matters as the cause of his psychiatric injury: the allegations the woman made against him; his arrest in early 2003 on suspicion of having committed an offence in respect of his son; and his unhappiness at being moved.
6. Mr Hudson made a claim for an injury award in February 2004. In his application he stated that the incident which led to his injury was “bullying, victimisation, and discrimination over a prolonged 4 year period by senior officers employed by the force”. The period in which this was alleged to have occurred was stated as...
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