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Cite as: [2005] ScotCS CSOH_124, [2005] CSOH 124

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McAdam, Re Judicial Review [2005] ScotCS CSOH_124 (16 September 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 124

P1791/03

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD BRACADALE

in the cause

HENRY MCADAM

Petitioner;

for

Judicial Review of the decision of a medical referee in terms of the Police Pensions Regulations 1987

________________

Petitioner: Clancy, Q.C.; Balfour & Manson

Second Respondent: A. Swanson, Solicitor Advocate; Maclay Murray & Spens

16 September 2005

Introduction

[1] The petitioner seeks judicial review of the refusal by the first respondent, a consultant psychiatrist who, while acting as a medical referee, heard an appeal by the petitioner against a decision by a duly qualified medical practitioner not to include an injury award in the petitioner's police pension. The second respondents are the Lothian and Borders Joint Police Board.

Background

[2]      The petitioner joined the Lothian and Borders Police Force on 25 September 1978. By 1994 he had attained the rank of inspector. In 1998 and 1999 the petitioner was the subject of two investigations under the Police (Conduct) (Scotland) Regulations 1996 ("the 1996 Regulations"). One of these investigations related to allegations of oppressive conduct made against the petitioner by other officers and employees of the second respondent. The inquiry into these allegations became known as the "Portobello Inquiry". In 1999 further allegations of a criminal and disciplinary nature were made against the petitioner. The inquiry into these allegations became known as the "West End Inquiry". In February 1999 the petitioner was suspended from duty. A report of the West End Inquiry was submitted to the Procurator Fiscal. These allegations were also reported in the press. In December 2000 the second respondents were advised that the Procurator Fiscal had decided not to prosecute the petitioner in connection with the West End Inquiry.

[3] In February 2001 a misconduct form in connection with the Portobello Inquiry was served upon the petitioner in terms of the 1996 Regulations and a misconduct hearing was set for 12 March 2001 in order to deal with these allegations. The petitioner raised proceedings in which he sought judicial review of the decision to hold that misconduct hearing and interim interdict in order to prevent the misconduct hearing taking place in the meantime. The petitioner was reinstated on 29 May 2001. In connection with the West End Inquiry, on 29 May 2001 the petitioner received a warning in terms of Regulation 6(6) of the 1996 Regulations but was not required to attend a misconduct hearing. The petitioner amended his petition for judicial review and he also challenged the decision to issue the warning under Regulation 6(6). On 4 November 2002 the petitioner retired from the police force and the petition for judicial review was dismissed. The present petition for judicial review arises from the procedures followed in order to determine the level of police pension to which the petitioner was entitled.

The Statutory Scheme

[4] Provision for pensions for police officers is made by the Police Pensions Act 1976 ("the 1976 Act") and the Police Pensions Regulations 1987 (S.I. 1987 No. 257) ("the 1987 Regulations) made thereunder. Section 1(2) of the 1976 Act requires regulations to be made to provide for the payment of pensions in a number of circumstances. These include officers who retire early "by reason of infirmity of mind or body" (section 1(2)(b)); and officers who retire by reason of injury received in the execution of their duty (section 1(2)(c)).

[5] Regulation B1 of the 1987 Regulations provides for the payment of the "ordinary pension" to a policeman who retires after completing at least 25 years' pensionable service. Regulation B3 provides for an "ill-health award" which is available to "a regular policeman who retires or has retired on the ground that he is or was permanently disabled". Regulation B4, which provides for the payment of an "injury award", includes the following provisions:

"(1) This Regulation shall apply to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty (in Part V of Schedule B referred to as the 'relevant injury').

(2) A person to whom this Regulation applies shall be entitled to a gratuity and, in addition, to an injury pension..."

An injury award is more generous than an ill-health award. Whether a policeman is entitled to an injury award in addition to an ill-health award depends on whether the policeman's permanent disablement is as "a result of an injury received without his own default in the execution of his duty".

[6] In schedule A certain of the expressions used in the 1987 Regulations are defined. "Injury" includes any injury or disease, whether of body or mind. "Injury received in the execution of duty" has the meaning assigned to it by Regulation A11 and "the result of an injury" is to be construed in accordance with Regulation A13.

Regulation A11 provides inter alia:

"(1) A reference in these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable...

(2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if -

(a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or

(b) he would not have received the injury had he not been known to be a constable, or

(c) the police authority are of the opinion that the preceding condition may be satisfied and that the injury should be treated as one received as aforesaid."

Regulation A12 includes the following provisions:

"(1) A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at the time likely to be permanent.

(2) Subject to paragraph (3), disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be, except that, in relation to a child or the widower of a member of a police force, it means inability, occasioned as aforesaid, to earn a living.

(3) Where it is necessary to determine the degree of a person's disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force:

Provided that a person shall be deemed to be totally disabled if, as a result of such an injury, he is receiving treatment as an in-patient at a hospital."

Regulation A13 provides:

"For the purposes of these Regulations disablement or death or treatment at a hospital shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement or death or the condition for which treatment is being received."

[7] The arrangements and procedures for determining entitlement to these awards are set out in Part H of the 1987 Regulations which is headed "Appeals and Medical Questions". Regulation H1 provides:

"(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the police authority.

(2) Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions:-

(a) whether the person concerned is disabled;

(b) whether the disablement is likely to be permanent;

and, if they are further considering whether to grant an injury pension shall so refer the following questions:-

(c) whether the disablement is the result of an injury received in the execution of duty, and

(d) the degree of the person's disablement ...

(4) The decision of the selected medical practitioner on the questions referred to him under this Regulation shall be expressed in the form of a certificate and shall, subject to Regulations H2 and H3, be final."

Regulation H2 provides:

"(2) If the person concerned is dissatisfied with the decision of the selected medical practitioner as set out in his certificate, he may, within 14 days after being supplied with the certificate or such longer period as the police authority may allow, and subject to and in accordance with the provisions of Schedule H, give notice to the police authority that he appeals against the said decision, and the police authority shall notify the Secretary of State accordingly, and the Secretary of State shall appoint an independent person or persons (hereafter in these Regulations referred to as the 'medical referee') to decide the appeal.

(3) The decision of the medical referee shall, if he disagrees with any part of the certificate of the selected medical practitioner, be expressed in the form of a certificate of his decision on any of the questions referred to the selected medical practitioner on which he disagrees with the latter's decision, and the decision of the medical referee shall, subject to the provisions of Regulation H3, be final."

[8] Schedule H provides for the procedure to be followed in an appeal before the medical referee:

"3. A medical referee shall appoint a time and place for interviewing the appellant and for any such further interviews or examinations as he may consider necessary and shall give reasonable notice thereof to the appellant and the police authority.

4. At any time before any interview with the medical referee the appellant or the police authority may submit to the medical referee a statement relating to the subject matter of the appeal, and if they so submit a statement they shall send a copy thereof to the other party.

5. Any interview or examination may be attended by -

(a) the selected medical practitioner; and

(b) any duly qualified medical practitioner appointed for the purpose by either party.

6. The medical referee shall give written notice to the police authority and appellant of his decision and, if that decision is that he disagrees with any part of the certificate of the selected medical practitioner, shall send a copy of his certificate to the police authority and the appellant."

Procedure under the Regulations

[9] On 4 November 2002, Dr D G Jones, a consultant occupational physician acting as a duly qualified medical practitioner under and in terms of Regulation H(1)(2) of the 1987 Regulations, decided that the petitioner was suffering from anxiety and depressive symptoms and that as a result of that medical condition, he was permanently disabled from performing the ordinary duties of a member of the police force. Dr Jones issued a certificate of permanent disability in respect of the petitioner on that date. This entitled the petitioner to an ill-health award under regulation B3. Dr Jones certified that the medical condition which gave rise to the petitioner's medical retirement was "not the result of any injury received in the execution of duty as a member of the police force". The effect of that finding was that the petitioner was not entitled to a "injury award" in terms of Regulation B4 of the 1987 Regulations.

[10]      In terms of Regulation H2 of the 1987 Regulations, the petitioner appealed against Dr Jones' finding that he was not entitled to an injury award. The first respondent was appointed as the medical referee to consider and decide the appeal. After preliminary procedural hearings, the appeal took place on 31 March and 30 May 2003. On 8 June 2003 the first respondent issued a written decision refusing the petitioner's appeal. In his determination, the first respondent noted that the petitioner had been medically retired from the police force on the grounds of depression and anxiety. He went on to note that the petitioner had perceived the behaviour towards him of some work colleagues and superiors as harassment or bullying and that there was some evidence in medical research that harassment and bullying can cause depression and/or anxiety. The first respondent then went on to deal in some detail with the issue of harassment and bullying.

[11] The first respondent also considered the question of the relations between the petitioner and Acting Superintendent Bright. The first respondent rejected the suggestion that the conduct of Acting Superintendent Bright amounted to bullying.

[12] In the final paragraph of his determination (paragraph 21.5), the first respondent concluded that on the balance of probabilities he did not find that the petitioner's permanent disablement was the result of an injury received in the execution of police duties.

[13] The effect of that finding was that the petitioner had failed in his appeal against the decision of Dr Jones that he was not entitled to an injury award. The petitioner raised this petition. The first respondent did not lodge answers but a letter written by his solicitors to the Deputy Principal Clerk of Session was placed before me. The relevant parts of the letter are in the following terms:

"We consider that Dr Chick was placed, as is often the case for medical referees under these regulations, in a most difficult position. Dr Chick is of course not legally qualified. The regulations required him to act in a quasi-judicial capacity and to construe complex regulations which have been the subject of repeated litigation in recent years, and to grasp legal distinctions of some nicety. Whilst he had the benefit of legal submissions on behalf of the Applicant and the police authority in doing so, little focus guidance was given to him by the appointing authority, the Scottish Public Pensions Authority. He did not have the benefit of a legally-qualified clerk or assessor. He then required to apply the appropriate tests as he understood them to convoluted factual allegations, the truth and interpretation of which were highly contentious. It is a matter of concern that legally-qualified assistance is not generally provided to medical referees in attempting to reach their decisions in such circumstances.

Dr Chick did his best in good faith to reach an appropriate decision on the basis of matters laid before him. However, having sought independent advice in light of the petition, Dr Chick accepts that there is some force in the criticisms of his approach in law contained in the petition. We do not intend to lodge answers to the petition on his behalf in the circumstances."

Mora

[14] I begin by considering the plea taken by the second respondents that the petitioner is barred by mora, taciturnity and acquiescence from bringing the matter before the court.

Submissions on Mora

[15] The first respondent issued his decision on 8 June 2003. The petition was served on the second petitioners on 15 December 2003. Miss Swanson pointed out that the petitioner did not challenge the first respondent's decision nor intimate his dissatisfaction with the decision prior to service of the petition. She submitted that the delay was unreasonable for a number of reasons. The petitioner was a sophisticated user of legal services and had access to legal advice. He was familiar with the process of judicial review. He had previously raised another judicial review against the second respondents. He had been represented during these proceedings. He had been represented at the appeal before the first respondent. During the period between June and November 2003 he had been in correspondence with the respondents on other matters. He had immediately appealed against the decision of the duly qualified medical practitioner to refuse the injury award. No cogent reasons had been given for the delay other than vague explanations relating to funding and seeking legal advice. It was reasonable for the second respondents to infer from his silence that he acquiesced in the decision of the medical referee.

[16] Mrs Swanson accepted that delay in itself was not sufficient to found a plea of mora. She recognised that there had to be prejudice. That could take a number of forms and detriment to good administration was sufficient. She submitted that there would be prejudice to the second respondents resulting in detriment to their good administration if the pursuer was successful. She referred to the evidence in relation to budgeting. The second respondents required to submit detailed financial plans to the Local Authority by mid-December each year. Any spending arising after that date required to be treated as an unbudgeted overspend. Police pensions were not separately funded. Payment of police pensions was made from funds available for operational policing. Were the first respondent's decision now to be reversed, any payment to the petitioner would have an impact upon the funds available for other aspects of the second respondents' operations, including for example, recruitment. There was no formal contingency fund for matters of this kind.

[17] In support of these propositions Mrs Swanson referred to the following cases: Hanlon v Traffic Commissioner 1988 SLT 802; Uprichard v Fife Council 200 SCLR 949; Regina v Dairy Tribunal, ex parte Caswell [1990] 2 AC 737; Kwik Save Stores Ltd v The Secretary of State for Scotland 1999 SLT 193; Atherton v Strathclyde Regional Council 1995 SLT 557; and Reside v North Ayrshire Council 2001 SLT 6.

[18]      Mr Clancy submitted that mere delay in bringing the petition was not enough to found a valid plea of Mora. Delay must be accompanied by conduct on the part of the petitioner signalling an abandonment of the right to challenge by judicial review. He accepted that in some circumstances, inaction or silence may amount to such conduct. In addition, there must be reliance on the petitioner's acquiescence giving rise to prejudice.

[19] Mr Clancy submitted that the period of delay in the present case was not particularly long. Six months was shorter than in many cases where the plea of mora had been repelled. The petitioner had been actively pursuing the question of judicial review. He had asked the Scottish Police Federation to fund a judicial review. They had refused and he had then appealed against that decision. The Federation made a final determination on funding on or about 10 September 2003. On the following day counsel was instructed to advise on the prospects of success of a judicial review of the first respondent's decision. A consultation with counsel took place on 28 October 2003. At the request of counsel, further documentation in the form of medical notes was obtained and sent to counsel. A petition was drafted. On 21 November 2003 the petitioner met with his agents and confirmed his instructions to proceed with the petition. Edinburgh agents were instructed on 25 November 2003 and a first order was granted on 5 December 2003. There was nothing in the chronology of the case that indicated acquiescence. It was common knowledge among senior officers in the Lothian and Borders Police that the petitioner was looking to the Police Federation to fund his judicial review. Superintendent Justice, the head of the Complaints Unit, knew all about the petitioner seeking Federation support for his petition. In particular, Superintendent Justice knew that in September, the Federation had refused to fund the petitioner's case. There had been a discussion between Superintendent Justice and Superintendent Copeland, as to whether the petitioner would proceed with his judicial review without Federation funding. In the course of that discussion, Superintendent Copeland advised Superintendent Justice that they could not assume that the petitioner would not proceed simply because he had been refused funding. Superintendent Justice had taken an active part in the proceedings before the medical referee. Deputy Chief Constable Wood was also aware of the situation. It would be reasonable for the second respondents to infer that the petitioner was pursuing a remedy by way of judicial review.

[20]      Mr Clancy submitted that it would be inappropriate to seek to rely on the absence of reference to the question of judicial review in the correspondence between the petitioner and the second respondents during the period between June and December 2003 as indicative of acquiescence. That correspondence had nothing to do with the injury award.

[21] Mr Clancy submitted that the second respondents had failed to demonstrate that there was material prejudice to them. He submitted that it was very unlikely that any kind of material prejudice could be demonstrated. There was the possibility of an annual payment of £6,000. In the context of a budget involving tens of millions of pounds, that was a drop in the bucket. There was a large degree of uncertainty in the provision of pensions.

[22] Mr Clancy referred to Hanlon v Traffic Commissioner 1988 SLT 802; King v East Ayrshire Council 1998 SC 182; and Devine v McPherson 2002 SLT 213.

Discussion and decision on Mora

[23] Delay in raising a petition for judicial review may lead to an inference of acquiescence in the decision against which the application is directed. A general statement to this effect is to be found in King v East Ayrshire Council 1998 SC 182 at p. 188G:

"We accept that in general applications for judicial review should be made at the earliest possible opportunity and a failure to do so may well lead to an inference of acquiescence which will be fatal to the application."

[24] While recognising that general principle, it is also clear from the authorities that each case must be considered in the light of its own circumstances. The need for finality may be greater in one context than in another. The length of any delay before implications of acquiescence arise will be variable depending on the circumstances. (Hanlon v Traffic Commissioner 1988 SLT 802; Reside v North Ayrshire Council 2001 SLT 6).

[25] It has been recognised in the authorities that silence can constitute an implied intimation that one is offering no opposition to a course of events. The natural inference from silence in full knowledge of the facts of a particular case may be that the aggrieved party accepted the decision. (Hanlon)

[26] In the present case six months elapsed between the intimation of the decision of the medical referee and the service of the petition. The explanation offered for that delay was twofold. First, the petitioner had made an application for funding to the Police Federation, which took some time for consideration. The Federation refused the application and an unsuccessful appeal procedure ensued. That process would be expected to take some time. No explanation was offered as to why the petitioner did not advise the second respondents of his intentions. He could have done so. I do, however, infer that the second respondents were aware that the petitioner was exploring the question of funding for a judicial review. I draw that inference from the petitioner's averments as to the knowledge of senior officers, the answers for the second respondents, the submissions at the bar, and the evidence of Mr Thickett, the Director of Human Resources for the second respondents, that Chief Superintendent Justice, the Head of the Complaints Unit, was managing the opposition to the petitioner's appeal to the medical referee and was very familiar with the case.

[27] Second, the petitioner explained that there was further delay while he obtained legal advice. This seems to have been pursued at a rather leisurely pace, even after the decision with respect to funding had been made. I conclude that while the whole period of delay is not very satisfactorily explained, I cannot say that it is wholly unreasonable.

[28] It is clear from the authorities that certainty is an important ingredient in good administration of government (Kwik Save Stores Ltd v The Secretary of State for Scotland 1999 SLT 193). There is an interest in good administration independently of hardship, or of prejudice to the rights of third parties (Regina v Dairy Tribunal, ex parte Caswell [1990] 2 AC 737). As Lord Prosser pointed out in Reside at p. 9L,

"when a party seeks judicial review of the actings of a public authority, it will be legitimate and may well be appropriate to take into account the general question of detriment to good administration, and that where there is such detriment, it may be unnecessary to find any specific harm flowing from the specific delay in a specific way."

[29]      Questions of budgets and expenditure are aspects of good administration. It is clear from the information before me, including the evidence of Mr Thickett, that the annual budget for the Lothian and Borders Police Authority is very large. Mr Thickett said that the budget for the financial year 2003- 2004 had been £180 million. Provision for police pensions comprises a significant part of the annual budget. The exercise in predicting how much will be required to provide for pensions in any particular year is very inexact. There is, as Mr Thickett put it, "an array of variables" in a given year. Evidence as to impact on recruiting was very vague. At any one time, as a matter of policy, there will be a significant number of vacancies. I conclude that the impact, in the whole context of the budgeting exercise, of a requirement to make an injury award in the petitioner's case would not be very significant. In these circumstances I am not satisfied that the second respondents have demonstrated detriment to good administration.

[30] No other prejudice is averred or was advanced in the presentation of the second respondents' case. It was not suggested that there would be prejudice to third parties. The circumstances of the present case are quite different from the planning cases to which I was referred. In these cases (Devine v McPherson 2002 SLT 213; Uprichard v Fife Council 200 SCLR 949) certain features of planning consents were of significance. A planning consent takes immediate effect and the recipient of a consent may well be likely to proceed, with relative despatch, to organise his affairs on the basis of having such a consent. In Uprichard, for example, a period of 19 weeks elapsed between the grant of planning consent and the raising of the petition. The petitioner had delayed in the knowledge that significant operations were being undertaken by the developer on the faith of the grant of planning permission. A further relevant significant feature of planning consent is that the existence of permission for development on a particular site may have consequences or implications for third parties.

[31]     
Nor is this a case such as Hanlon where very significant steps had been taken in reliance of the decision and a large number of people were affected by it. In Hanlon the petitioners sought review of a decision of the Traffic Commissioner not to proceed with an appeal against the decision of the Licensing Authority approving a new scale of fares for taxis in Glasgow. In the wake of the decision to implement a new scale a change required to be made in the microchip in every taxi meter, and the meters tested, in time for the coming into effect of the new scale. A large number of taxi owners was affected by the change.

[32] For these reasons I repel the plea of mora advanced by the second respondents.

Approach of medical referee

Submissions

[33] The main thrust of the criticism of the first respondent made by Mr Clancy was that he had adopted a fundamentally wrong approach to his task. There was a secondary criticism that he had not properly addressed issues of fact. In the event this latter criticism did not feature to a great extent and the case really turns on whether the first respondent failed in his approach to his task. Mr Clancy took as his starting point the undisputed proposition that the petitioner was permanently disabled due to anxiety and depression. Following the approach set out in R v Kellam ex parte South Wales Police Authority 2000 ICR 632 the first respondent's first task was to identify the factors which caused or substantially contributed to that medical condition. Then he was to determine whether a particular factor or factors which made a contribution to the condition formed part of his service as a police officer (Kellam and Lothian and Borders Police Board v Ward 2004 SC 182). This would include an examination of whether such factors were part of his work circumstances in the sense that that phrase is used in R v Fagan ex parte Mountstephen 1996 COD 416, Kellam and Ward. Mr Clancy submitted that the first respondent had failed to carry out the exercise in this way. He had failed to apply the correct legal test. His consideration and determination of the appeal centred on and was dominated by the question of whether the incidents described by the petitioner as having occurred following his return to work on 29 May 2001 amounted to harassment or bullying (paragraphs 12.7 and 21.2). Most of the discussion in his decision was about issues of fact bearing on that question. In making that question the de quo of the appeal, the first respondent asked himself the wrong legal question and accordingly erred in law. The question of whether the petitioner was being bullied or harassed was not the appropriate question for the medical referee. What he had to do was to determine whether dealings with fellow officers had contributed to the petitioner's medical condition. If it did, the question of whether it amounted to harassment or bullying, was irrelevant. Mr Clancy suggested that paragraph 21.5 was very difficult to understand. There appeared to be a triple negative in the first sentence. The next sentence was confusing and indicated that the medical referee had not understood what was meant by work circumstances. The reference in paragraph 21.3 to the possibly that the petitioner "may misperceive awkward interactions as resentment, disdain or even hostility" could fall within work circumstances as interpreted in Ward. It was similar to Miss Ward's disappointment at her appraisal and marginalisation.

[34]      Mr Clancy pointed out that the first respondent himself through his solicitors accepted that he had been in error. He suggested that there was no reason in principle why I should not have regard to the letter from the solicitors acting for the first respondent. The approach adopted in Grubb v Jones 2003 SLT 1101 supported that proposition.

[35] The second criticism related to the way in which the first respondent had dealt with the resolution of factual material. He had a brief interview with the petitioner and Dr Jones. No evidence was led before the first respondent but a substantial amount of material was laid before him. A number of statements from persons who had knowledge of and involvement with conflict between the petitioner and other senior officers were included. The first respondent had stated at paragraph 21.1 that he was not qualified to make a judgement about veracity. Mr Clancy submitted that a medical referee was under a duty to resolve factual disputes between the parties, deciding for himself whether material evidence was truthful and/or accurate. His conclusion at paragraph 21.2 that on a balance of probabilities the incidents referred to by Mr McAdam did not amount to harassment or bullying was inconsistent with his observation that he was not qualified to make a judgement about veracity. At paragraph 20.6, he purported to resolve a factual dispute.

[36]      Miss Swanson agreed that the role of the medical referee was to identify the factors that had caused the illness and to decide whether these arose as part of the service or as a police officer. Miss Swanson submitted that when the opinion of the first respondent was examined it could be seen that he had concluded that the incidents were minor (paragraph 12) and that he was entitled to reach the conclusion that they did not amount to harassment or bullying (paragraph 21.2). In paragraph 19, he had dealt with the stress factors and concluded that the petitioner was still affected by disciplinary proceedings and their sequelae and that he had generated some stress for himself in deciding to expose himself to court proceedings by raising this petition. While she recognised that the first sentence of paragraph 21.5 was difficult to construe, she submitted that the first respondent was correct to conclude that the medical condition did not arise from police duty. The petitioner was disappointed at not being given certain duties and his reaction to it had caused his condition. It was not enough that the petitioner suffered a feeling of disappointment or a perception that he was being harassed contemporaneously with carrying out his duties. Something external has to impact on him while he is carrying out his duties. There were no operational events identified by the medical referee as having caused the illness.

[37] Miss Swanson referred me to the Opinion of Lord Reed in the unreported case of Lothian and Borders Police v Robert McDonald (14 October 2004) in which he took the view, distinguishing Ward, that the phrase "execution of duty" should be given a narrower interpretation reflecting the aim of the legislation and the natural meaning of the words (see paragraph 99-101).

[38] Miss Swanson submitted that the medical referee did not need to decide on the veracity of the petitioner's account and had no duty to resolve factual disputes. The medical referee should look at the account given by the petitioner pro veritate and decide whether these were minor incidents and so forth.

Discussion and decision

[39] I am satisfied that I can have regard to the letter written by the solicitors acting for the first respondent. While its terms could not possibly be conclusive and I arrive at my conclusion on the basis of the pleadings, the evidence which I heard and the submissions made before me, I consider that I am entitled to note the terms of the letter. I am fortified in that view by the approach adopted by Lord Eassie in Grubb v Jones 2003 SLT 1101.

[40]     
In the course of the hearing of this petition the Extra Division issued its opinion in Lothian and Borders Police Board v Ward 2004 SLT 215. In the Opinion of the Court, delivered by Lady Cosgrove, a number of general principles are identified. After referring to the decisions in R (Stunt) v Mallett 2001 ICR 989 and R v Kellam ex parte South Wales Police Authority 2000 ICR 632 and a number of other authorities, Lady Cosgrove said this at page 217-218:

"We consider that the principles to be drawn from Stunt and Kellam and the other authorities mentioned and approved in these cases, applicable to the issue that arises in this case, are as follows. The person's injury must be 'directly and causally connected with his service as a police officer' (Huddersfield Police Authority v Watson). The test of causation is not to be applied in a legalistic way and falls to be applied by medical rather than legal experts (Kellam). What is important is the existence of a 'substantial causal connection between the injury and the person's service as a police officer' (Kellam). The words 'in the execution of duty' are to receive a benevolent interpretation (Garvin v City of London Police Authority 1944 KB 358). 'Duty' relates to the officer's 'work circumstances'. The injury must have been caused through actually being at work as a police officer (Kellam). The circumstance that a particular constable is more vulnerable than the generality of his colleagues to injury (whether that is a physical vulnerability or mental vulnerability by reason of having, for example, an 'eggshell' personality) does not preclude that constable from obtaining an injury award (R v Fagan ex parte Mountstephen)."

In addition, as was pointed out by Lord Hamilton in Phillips v Strathclyde Joint Police Board 2002 SLT 1271 at p. 1274 C-D, it is not necessary that the work circumstances are the sole cause of the injury.

[41] In Ward at page 219F the court held that while neither disciplinary proceedings nor unsuccessful promotion could be regarded as directly concerned with a person's service as a police officer, an appraisal process could be:

"We have reached the view, applying the principles to which we have referred, that the appraisal process can properly be distinguished from disciplinary proceedings and also from the situation in which an officer has applied for promotion. Neither of these situations is directly concerned with a person's service as a police officer. The appraisal process, on the other hand, is an event experienced by an officer through actually being at work and is, in our view essentially and inextricably linked with the performance by him of his duties as a police officer. Richards J in Kellam (at page 645) said that it is 'sufficient to find a causal connection with events experienced by the officer at work, whether inside or outside the police station or police headquarters and including such matters as things said or done to him by colleagues'. We agree with that view. It was what was done by way of delaying the process and what was communicated to her by her senior colleague in the course of it that caused Miss Ward distress. These were events that occurred as part of and not in any way extraneous to, her 'work circumstances".

[42]     
In my opinion the contention of Mr Clancy that the first respondent has not adopted the correct approach to his task is well founded. The first respondent has not approached the task in the manner set out in Kellam and approved in Ward. The first respondent clearly accepted that the petitioner had retired on medical grounds as he was suffering from anxiety and depression. What he then did was to focus to a very large extent on whether certain conduct amounted to harassment and bullying. At paragraph 8 of his determination the first respondent said:

"At the hearing on 31 March 2003 I asked Mr MacAdam to describe in detail the incidents which he had told Dr Jones were harassment, because the incidents had not been clearly delineated in the first submissions by either party, and more clarity was necessary for me to decide whether they amounted to harassment and to decide whether, if harassment occurred, it occurred in the execution of his duty as a policeman."

[43] Under the heading "The Alleged Harassment Incidents", the first respondent identified a number of complaints which the petitioner had made. He noted that the petitioner was disappointed that on return to work he was not given the jobs that he would have most liked. He noted the complaints of the petitioner in relation to the duties which he was given on his return to work. The first respondent concluded that the incidents described were minor and, even when taken together, would not amount to harassment, even taking into account that Mr MacAdam might be vulnerable and sensitised because of the stressful preceding years.

[44] At paragraph 19.3, the first respondent said this: "Despite his claims, I think Mr MacAdam was perhaps still affected by the disciplinary proceedings and their sequelae". He noted that Dr Jones had recognised that Mr MacAdam was stressed at work but that Jones had decided that this was apparently related mostly to the West End and Portobello inquiries and sequelae and did not amount to injury in the course of his duties as a police officer. The first respondent also considered that the petitioner had generated some of the stress in that he himself had decided to expose himself to Court proceedings in the early petition.

[45]     
After paragraph 21.2 the first respondent said:

"Mr MacAdam's allegations had not been clearly defined in his original appeal. When he listed them in further submissions, and on what I have heard at the hearing and read in other submissions, I conclude that, on the balance of probabilities, the incidents referred to Mr MacAdam do not amount to harassment or bullying."

He went on in paragraph 2.15 to say:

"The information I have is not sufficient to exclude that low mood/anxiety did not arise from his dissatisfaction at this allocated work, the unresolved Portobello issues and the pending Judicial Review. An individual feeling anxious or depressed might well experience distress in the course of his duties, 'e.g. presenting research at a new building at a meeting', but his distress was not directly caused by his duties as a police officer (as I understand that phrase - see appendices of previous cases offered by solicitors in this case, and extracts I have quoted in the appendix below). On the balance of probabilities, I do not find that Mr MacAdam's permanent disablement is the result of an injury received in the execution of police duties."

I find the terms of paragraph 21.5 extremely difficult to understand. Even Mrs Swanson had difficulty in analysing what it was that the first respondent was saying in this part of his determination. It is on any view a critical paragraph since it purports to contain the concluded view of the first respondent. I am unable to accept the submission of Mrs Swanson that when the determination is read as a whole it can be interpreted as following a correct approach and coming to a correct decision. It seems to me that the first respondent has followed a fundamentally flawed approach and that that has fatally damaged his conclusion. By setting himself the task of deciding whether the conduct complained of amounted to harassment and bullying the first respondent introduced an unnecessary and irrelevant hurdle for which there is no basis in the statutory scheme. The result was that he applied the wrong legal test. Having recognised that the petitioner was suffering from a particular medical condition which constituted permanent disablement for the purpose of regulation B3 of the 1987 Regulations, the first respondent should have gone on to identify the factors which caused or substantially contributed to that medical condition. He should then have determined whether a particular factor or factors which caused, or substantially contributed to, the condition formed part of his service as a police officer (Ward and the cases referred to therein).

[46] Having come to this conclusion I consider that it would not be proper for me to say anything further about the merits of the petitioner's case. The proper course in my view is for me to order reduction of the decision of the first respondent and to order that the appeal be heard again by a different medical referee. This is of course without prejudice to the conclusion at which that medical referee may arrive. It would be premature to form a view as to whether the tests set out in the authorities are met in the petitioner's case. That will be for the new medical referee to decide and nothing said in this opinion should be interpreted as encouraging a view one way or another in the making of that decision. In addition, while it does seem to me that in an appropriate case a medical referee might well have to resolve issues of fact it is not necessary to form a concluded view as to whether the first respondent misdirected himself by failing to address issues of credibility in his determination. If the proper approach is followed such issues might not arise at all.

[47] For the reasons set out above I shall order reduction of the decision of the first respondent. I shall order that the appeal against the decision of the duly qualified medical practitioner, Dr Jones, be heard again by a different medical referee. I shall reserve the question of expenses meantime.


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