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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Rooney v Strathclyde Joint Police Board [2008] ScotCS CSIH_54 (03 October 2008)
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSIH_54.html
Cite as: [2008] ScotCS CSIH_54, 2009 SCLR 31, [2008] CSIH 54, 2009 SC 73, 2008 GWD 33-501

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord Reed

Lord Carloway

Lord Marnoch

 

 

 

 

 

[2008] CSIH 54

P1330/05

 

 

OPINION OF THE COURT

 

delivered by LORD REED

 

in

 

Reclaiming Motion by the Respondents

 

in the Petition of

 

MATTHEW ROONEY

Petitioner;

 

against

 

STRATHCLYDE JOINT POLICE BOARD

Respondents:

for

 

Judicial Review

 

_______

 

 

 

Petitioner: Clancy, Q.C.; Allan McDougall

Respondents: Anderson, Q.C.; G Lindsay, Edinburgh City Council

 

3 October 2008

Introduction
[1] In 1979 the petitioner began service as a police constable with Strathclyde Police. A number of difficulties arose, over many years, between the petitioner and his superior officers. Some of these difficulties are mentioned below. From the summer of 2002 the petitioner was absent from work on the grounds of ill health. The respondents subsequently initiated procedure for the petitioner's compulsory retirement on the ground of disablement under the Police Pension Regulations 1987 (S.I. 1987 No.257) as amended ("the Regulations"). On 5 July 2003 Dr David Watt, acting as a duly qualified medical practitioner in terms of the Regulations, certified that the petitioner was permanently disabled from performing the duties of a police officer. The petitioner appealed against that decision in accordance with the Regulations. On 22 November 2004 the appeal was refused by Dr Douglas Patience, a consultant psychiatrist acting as a medical referee in terms of the Regulations. In the present application for judicial review the petitioner seeks the reduction of Dr Patience's decision. Following a hearing, the Lord Ordinary issued an Opinion dated 21 December 2006 in which she concluded that Dr Patience's reasoning, as set out in his letter to the respondents dated 22 November 2004, was "unintelligible" and that the test of Wednesbury unreasonableness was met. She also concluded that it would be necessary to hear evidence before deciding whether the petitioner's further contention, that Dr Patience had failed to carry out a medical examination of the petitioner and had therefore not been in a position to determine the appeal, was well-founded. After hearing counsel further in the light of that Opinion, the Lord Ordinary quashed Dr Patience's decision. The respondents have appealed against that interlocutor. Dr Patience has not chosen to become a party to the proceedings.

 

The relevant legislation
[2] The circumstances in which police officers are or may be required to retire (other than on the ground of misconduct), and the pensions to which they are entitled, are governed by the Police Pensions Act 1976 as amended and regulations made thereunder. Under section 1(1) of the 1976 Act, such regulations are required to make provision inter alia:

"(c) as to the times at which and the circumstances in which members of police forces are or may be required to retire otherwise than on the ground of misconduct".

 

In relation to procedure, the regulations are required by section 6(1) to make provision as to the court or other person by whom appeals are to be heard and determined in the case of any person who is aggrieved by the refusal of the police authority to admit a claim to receive a pension, or a larger pension than that granted. Section 6(3) provides:

"(3) The regulations may provide, in relation to questions arising thereunder, for the reference of any such matter as is prescribed, either by the policy (sic) authority or by the court, to a medical practitioner whose decision thereon shall, subject to such rights of appeal as may be provided by the regulations to such tribunal as may be constituted thereunder, be final on the matter so referred."

 

[3] The regulations made under the 1976 Act, so far as relevant to the present case, are the Regulations. Part A of the Regulations makes provision inter alia as to the times at which and the circumstances in which police officers are or may be required to retire, in accordance with section 1(1)(c) of the 1976 Act. In particular, Regulation A20 provides:

"Compulsory retirement on grounds of disablement

 

A20. Every regular policeman may be required to retire on the date on which the police authority determine that he ought to retire on the ground that he is permanently disabled for the performance of his duty:

Provided that a retirement under this Regulation shall be void if, after the said date, on an appeal against the medical opinion on which the police authority acted in determining that he ought to retire, the medical referee decides that the appellant is not permanently disabled."

 

The expression "permanently disabled" is defined by Regulation A12:

"Disablement

 

A.12.-(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 that time likely to be permanent.

 

(2) ... 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 ..."

 

[4] Part H of the Regulations is headed "Appeals and Medical Questions", and lays down the procedures to be followed. In particular, Regulations H1 and H2 provide as follows:

"Reference of medical questions

 

H1.-(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;

 

and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

 

...

 

(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.

 

H2.-(1) Where a person has been informed of the determination of the police authority on any question which involves the reference of questions under Regulation H1 to a selected medical practitioner, he shall, if, within 14 days after being so informed or such further period as the police authority may allow, he applies to the police authority for a copy of the certificate of the selected medical practitioner, be supplied with such a copy.

 

(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."

 

Regulations H5 and H6 provide a right of appeal, to the Sheriff Court (in the case of Scottish police officers) or to a tribunal (in the case of certain specified officers) respectively, where a claimant is aggrieved by the refusal of the police authority to admit a claim to receive as of right an award or a larger award than that granted. In such a case, Regulation H3 applies:

"Further reference to medical authority

H3.-(1) A court hearing an appeal under Regulation H5 or a tribunal hearing an appeal under Regulation H6 may, if they consider that the evidence before the medical authority who has given the final decision was inaccurate or inadequate, refer the decision of that authority to him for reconsideration in the light of such facts as the court or the tribunal may direct, and the medical authority shall accordingly reconsider his decision and, if necessary, issue a fresh certificate which, subject to any further reconsideration under this paragraph, shall be final.

 

(2) The police authority and the claimant may, by agreement, refer any final decision of a medical authority who has given such a decision to him for reconsideration on fresh evidence, and he shall accordingly reconsider his decision and, if necessary, issue a fresh certificate, which, subject to any further reconsideration under this paragraph or paragraph (1), shall be final.

 

...

 

(4) In this Regulation a medical authority who has given a final decision means the selected medical practitioner, if the time for appeal from his decision has expired without an appeal to a medical referee being made, and the medical referee, if there has been such an appeal."

 

Subject to Regulation H3(1), the final decision of a medical authority is binding in any proceedings under Regulation H5 or H6, in accordance with Regulation H7(2).

[5] It is also necessary to note Regulation H4, which provides as follows:

"Refusal to be medically examined

 

H4. If a question is referred to a medical authority under Regulation H1, H2 or H3 and the person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then -

 

(a) if the question arises otherwise than on an appeal to a medical referee, the police authority may make their determination on such evidence and medical advice as they in their discretion think necessary;

(b) if the question arises on an appeal to a medical referee, the appeal shall be deemed to be withdrawn."

 

[6] Finally, in relation to the Regulations, Schedule H, so far as relevant, provides as follows:

" Medical Appeals

1. Every notice of appeal under Regulation H2(2) shall be in writing.

 

2. On receipt of the notice of appeal the police authority shall forward to the Secretary of State 2 copies thereof and of the certificate appealed against, with the name and address of the appellant.

 

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 the 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."

 

The proceedings
[7]
From about March 2002 the petitioner was absent from work on the grounds of ill health. In December 2002 he was referred by Dr Warnock, the Senior Occupational Physician of Strathclyde Police, to Dr Ernest Worrall, a consultant psychiatrist. Dr Worrall saw the petitioner in January 2003, and provided Dr Warnock with a report dated 23 January 2003. In his report, Dr Worrall stated:

"The vast majority of the consultation was spent by him describing the circumstances of his numerous disputes with Strathclyde Police over the years. Although some of these were long since in the past he still continues to describe them in an emphatic, involved way. He explained that over the course of his career he had numerous complaints made against him by members of the public mainly complaints of assault. His explanation for this is that he saw himself as being vigorous in the arrest and restraining of suspects. He was at the lower end of the limit for the height qualification for getting into the police and saw himself as being potentially at risk if he did not defend himself. He is an ex-boxer and somewhat pugnacious by nature. He contrasted his own behaviour with that of other officers whom he had known and whom he believed would have taken the easy option and let the offender suspect escape if it was likely to lead to problems if apprehended.

 

His disputes with Strathclyde Police arose because he clearly saw himself as being a thorn in their flesh and he believed that they at times treated him unjustly. In retaliation he admitted that he would make frivolous requests in order to cause annoyance. For example at one point he made application to join the pipe band.

 

He claimed that those officers in the past who had either thwarted his own ambitions, told lies about him or generally 'done him down' had been subsequently promoted. When I specifically asked if he was making this as a humorous, ironic comment he told me unequivocally that was not the case and that he believed these other officers had been promoted because they had thwarted him and it was a reward from Strathclyde Police for having done so.

 

Having been reinstated in 1999 he told me that 'I won over my shift' and by that he meant he had obtained the support of his colleagues by his behaviour at work after his reinstatement. At that point he asked to join the Support Unit but that was refused. His general battle with Strathclyde Police continued after that and he eventually again went off on sickness leave a year ago. He told me that this was because of 'stress' but when I asked him about some specific anxiety or depressive symptoms apart from some difficulty at times in sleeping he had no formal symptoms.

 

There is a large file documenting his various arguments over the years with his employers, he has contacted his MSP and has had to employ a lawyer on his own behalf (perhaps consistent with his general theme he dismissed the police federation lawyers as being 'useless').

 

Personal History

 

...

 

Although he was in good terms with his mother until her death, he is estranged from the rest of the family partly because of his behaviour when he was gambling.

 

...

 

Past Psychiatric History

Describes a long term compulsive gambling problem which disrupted much of his financial and social life when he was younger including at one stage personal bankruptcy. However he has controlled that addictive behaviour with the help of Gamblers Anonymous and obtained the spur to do so nine years ago at the time of his disputed resignation letter.

 

Mental State Examination

 

At the consultation he presented as a casually dressed, fit looking man. He always talked animatedly and vehemently about his disputes with his employer and the various complaints that had been made against him. He regularly approaches newspapers when he is in a dispute with his employer in order to inform them and when I asked questions about the usefulness of that he became quite heated.

 

He further demonstrated the single-mindedness of his thinking by telling me 'If I see a wrong I do something about it'.

 

The only humour shown during the consultation was when he told me about his application to join the police pipe band.

 

Opinion

 

The medical issue here is whether Mr Rooney's behaviour in his relationship with his employer is a result of mental illness or just 'bloody mindedness'.

 

On balance in my opinion he is ill. That judgement is based on both his objective appearance with me and the way in which he described his pursuit of his own personal vendetta against Strathclyde Police, some of the overvalued ideas he held within that topic and the fact that his single minded pursuit of this has been to his considerable social and personal disadvantage over the past few years. The formal diagnosis would be of a Paranoid Personality Disorder. (He would many years ago have been regarded as a 'paranoid litigant'). As a result of that condition I do not think he is medically fit to continue serving as a police officer. That medical disability is likely to be enduring and the corollary of that would therefore be that he would fulfil the pension requirements for medical ill health retirement. In my opinion his working conditions have not caused his illness or contributed to it. Rather the reverse: his illness has seriously interfered with his working capacity and his ability to make give and take relationships with an employer."

 

The references in that report to the petitioner's "disputed resignation letter", and to his reinstatement in 1999, concerned a particular dispute which had arisen in 1993 when the petitioner submitted his resignation from the police, and subsequently sought to withdraw his resignation. When the Chief Constable refused to accept the withdrawal of his resignation, he brought proceedings for judicial review of that decision, which were eventually concluded in his favour. He was then reinstated.

[8] After receiving Dr Worrall's report, Dr Warnock proceeded in accordance with Regulation H1(2). By letter dated 14 March 2003 he referred the petitioner's case to Dr Watt, as a duly qualified medical practitioner, for a decision on the questions specified in Regulation H2(2). Dr Watt is a consultant in occupational medicine. In his letter, Dr Warnock wrote:

"The essence of this case is a cycle of conflict dating back over many years which Dr Worral explains in terms of paranoid personality disorder.

 

Although Constable Rooney's appetite for conflict and litigation apparently knows no bounds, he is I think at the same time worn out by this and would welcome a mechanism for exiting without further conflict.

 

I am advised that his conduct has been such that disciplinary measures could have been invoked which would have been likely to result in his discharge from the Force. The management view however is that he is a vulnerable individual whose machinations are ultimately self defeating and they would like to see a humane termination of his career if this is possible. I would support this view.

 

Having received Dr Worral's report, I have recommended medical discharge. Mr Rooney undoubtedly feels that his service as a Police Officer has been damaging but Dr Worral addresses this issue very specifically, saying that it is his illness, which has affected his relationship with his employer rather than the other way round. I can concur with this line of thinking and have not recommended an injury award."

 

Dr Warnock enclosed with his letter a copy of Dr Worrall's report, the petitioner's occupational health record, and a copy of a report prepared by himself.

[9] Dr Watt examined the petitioner on 9 April 2003. He then obtained a report dated 16 May 2003, from Dr Fiona Davidson, the petitioner's general practitioner:

"Mr Rooney appears to have had many problems at work, which have been ongoing for some time now. Over the last year he has been particularly anxious and agitated when discussing his work problems and also has a long history of previous depression. I would certainly agree that, from what I know of Mr Rooney, there is a degree of personality disorder involved here but I am unable to comment as to whether this amounts to paranoia as I only have his side of the story, so-to-speak to go on as to what happened at his work.

 

I have seen Mr Rooney many times over the last couple of years and his mental health is not improving at all. I would agree that he is no longer fit for work in the police force and I think the only route to go down now is ill-health retirement."

 

 

Dr Watt subsequently issued a certificate dated 5 July 2003 in which he gave his decision on the matters referred to him:

"I find [the petitioner] disabled by a medical condition from performing the duties of a police officer.

 

The disablement for the normal activities of a police officer by reason of personality disorder is likely to be permanent.

 

The condition is not the result of an injury received in the execution of duty."

 

[10] The petitioner appealed against Dr Watt's decision that he was permanently disabled, in accordance with Regulation H2(2). Dr Patience was appointed as the medical referee to decide the appeal. In support of his appeal, the petitioner submitted a report dated 27 February 2004 by Dr Alex Stewart, a consultant psychiatrist. In his report, Dr Stewart began by narrating the history given to him by the petitioner. The history included the following:

"Over the years he had a number of complaints made against him generally for assaults in which he had to defend himself ... In all, over the years he was charged with assault about 6 or 7 times and he was always found to be not guilty in court and was fully vindicated.

 

...

 

In 1993 he tendered his resignation from the Police while under a great deal of stress. At the time he had three charges of assault hanging over him. His flat was being repossessed and he was facing bankruptcy because of debts incurred due to a gambling problem.

 

After speaking to a friend he tried to withdraw his resignation just a few days afterwards, the Strathclyde Police refused to accept it.

 

Since then he has regularly attended Gamblers Anonymous, which is still a very big part of his life. He has not had a bet for almost 11 years and as a result he has gradually built up his life."

 

Dr Stewart gave the following opinion and prognosis:

"OPINION

 

This man gives a history of longstanding conflict with Strathclyde Police. On two occasions this led to Court cases with regard to withdrawal of his resignation in 1993 and payment of tax following reinstatement. Both of these Court actions were successful.

 

It is evident he has had difficult relationships with his superior Officers but he has on the whole had good appraisals. He is very keen to be considered fit for Police duties again. He has however been certified unsuitable by reason of a medical condition, namely personality disorder which is considered to be permanent.

 

On examination today I could not detect any evidence of psychosis. In addition I am not convinced that he has paranoid personality disorder.

 

It is likely however that on a retrospective diagnosis he was suffering from moderately severe major depression in the Summer of 2002 following the death of his mother and his close friend. At present he is no longer in the clinically depressed range and indeed from the MADRAS score has fully recovered.

 

I have however only seen him on his own and although I asked him to bring a relative or friend he did not do so. It is essential therefore to discuss with the nominated relative or friend Mr Rooney's personality prior to joining Strathclyde Police in 1979, throughout his Police career and since he has been on sick leave.

 

It would be helpful if you could discuss with Mr Rooney the name of a suitable nominated relative or friend to whom I could speak by telephone. In addition it would be useful to talk Mr Rooney's General Practitioner to obtain his views on his personality.

 

PROGNOSIS

 

While Mr Rooney presented well and showed no evidence of psychosis or personality disorder I am concerned about his return to work because of his history of problems with Strathclyde Police in the past. He has however shown evidence of resilience of spirit and I do not agree with Dr Worrall's opinion that he could be regarded as a paranoid personality, paranoid litigant which would refer to someone showing multiple futile Court actions. In fact, based on my information, there have been only two Court cases and in both he has been successful.

 

It is my opinion therefore that on the basis of my examination without reference to a relative, friend or his General Practitioner that he should be given one further final opportunity to be considered for reinstatement to ascertain whether he could make a positive, useful contribution to the work of Strathclyde Police. I would expect that given his determination and grit they could be utilised in the course of his duties with Strathclyde Police and he becomes less confrontational, there is the probability that he could be found a niche where the determination to return to the Force could be deployed for its benefit. In this context it is noted that if he was satisfactorily confronted his problem with pathological gambling (sic) and he has in addition recovered from moderately severe major depression.

 

In summary it is my opinion therefore that he should be given one further final opportunity for reinstatement with re-training and further re-assessment after a probationary period. He should therefore in my opinion be given the benefit of the doubt and allowed to return to service with Strathclyde Police but the responsibility is his to make a success of it."

 

Finally, Dr Stewart expressed the view that the petitioner did not fulfil the criteria for a diagnosis of paranoid personality disorder. Before this court, counsel for the petitioner informed us that Dr Stewart had not spoken to any relative or friend of the petitioner, as he had wished to do. It was accepted that Dr Stewart's report was to that extent provisional.

[11] Dr Patience was provided with copies of the reports by Dr Worrall, Dr Warnock, Dr Davidson and Dr Stewart, and in addition with a report by Dr Watt dated 25 November 2003:

"3. I assessed Mr Rooney on 9th April 2003. I had the benefit of a report from Dr P Warnock, Senior Occupational Physician for Strathclyde Police Force Occupational Health and Welfare Unit and reports written by Dr Ernest Worrall, Consultant Psychiatrist dated 23rd January 2003 and by Mr Rooney's General Practitioner, Dr Fiona Davidson, dated 16th May 2003.

 

4. Dr Warnock, Dr Worrall and Dr Davidson recommended that Mr Rooney be discharged from the Police Force on the basis of permanent ill health caused by personality disorder.

 

5. Mr Rooney related to me difficulties that he had faced at work involving a Crown Office Report and his application to join the Support Unit. He felt he had been treated unfairly. He felt he was being closely supervised at work behind his back. There had been disagreement with his superiors that preceded his absence from work. He was concerned that he had had insufficient help for his gambling problems. He had not had counselling following duty at a Road Traffic Accident while others had. He felt badly treated and was intent on suing the Police Force.

 

6. I could not identify a work event that could be regarded as causative of Mr Rooney's problems. It was likely in my view that his behaviour and personality were the causes of the difficulties he faced. He had mental health problems that were likely to continue for the foreseeable future and until his normal retirement age. On this basis I recommended discharge from the Police Force on the grounds of personality disorder but did not conclude that an injury on duty had occurred."

 

In addition to the medical reports, Dr Patience was also provided with submissions prepared by the solicitors acting on behalf of the petitioner and the respondents. It was contended on behalf of the petitioner, on the basis of Dr Stewart's report, that he was not suffering from a personality disorder. It was further asserted that, in any event, the petitioner's condition was not permanent and was capable of resolution by "the appropriate treatment"; but no material appears to have been put forward in support of that assertion, or to indicate any form of treatment which might be appropriate. The submissions were largely concerned with the plethora of previous disputes between the petitioner and Strathclyde Police. It was common ground at the hearing of the present appeal that it was unnecessary, for present purposes, to consider the submissions in detail.

[12] What might for the present be described in neutral terms as a hearing of the appeal took place on 20 October 2004. In accordance with paragraph 3 of Schedule H to the Regulations, the petitioner and Dr Patience were present. In accordance with paragraph 5, Dr Watt was also present. Mr Watson and Mr Blair, the solicitors acting for the petitioner and the respondents respectively, were also present. Each of these individuals has provided an affidavit describing what took place at the hearing, in accordance with an order made by the Lord Ordinary.

[13] There are differences between the affidavits as to matters of detail: in particular, Dr Patience appears to have a different recollection of the order of events from the other persons present at the hearing. The affidavits are otherwise broadly consistent as to what took place. Dr Patience began by effecting introductions and by explaining the purpose of the hearing. After agreement had been reached as to the procedure to be followed, Dr Patience questioned (to use another neutral term) the petitioner for some time. Dr Watt explained his reasons for having issued his certificate. Each of the solicitors made submissions. Dr Patience then requested certain documents, which were subsequently provided to him. These included the petitioner's personnel records and the medical records held by his general practitioner. The affidavits differ as to whether the records of the Occupational Health Department of Strathclyde Police were also provided at that stage, or whether they had been provided to Dr Patience in advance of the hearing.

[14] In relation to Dr Patience's questioning of the petitioner, the petitioner's affidavit states:

"At the outset of the Hearing Dr Patience effected introductions and he advised that he would be questioning me in respect of my condition. He advised that the purpose of the Hearing was to ascertain whether I was permanently disabled from performing the ordinary duties of a Police Officer ... He did not advise me at any time that he was carrying out a formal medical examination. He merely advised me there was a number of questions he wished me to answer.

 

Dr Patience commenced by questioning me for no more than 25 minutes. The questioning consisted of him ascertaining my personal circumstances, a discussion in respect of my gambling and a further discussion in respect of my work performance and my attitude to work."

 

The affidavit by the petitioner's solicitor is to similar effect, but also refers to a discussion outwith the petitioner's presence before he was questioned:

"4. ... Mr Blair [the respondents' solicitor] and I explained to [Dr Patience] the format of these hearings as we had attended these on a number of occasions and what we indicated to him was to the effect that he should carry out an examination of Mr Rooney, Dr Watt then be invited to make medical observations, Mr Blair then would be invited to make a statement for the Police Authority and I would make a statement on behalf of Mr Rooney. This discussion involving Mr Blair, Dr Patience and myself took place outwith the presence of both Dr Watt and Mr Rooney.

 

5. The hearing commenced with Dr Patience introducing himself and focusing on the reasons for our attendance. I have no recollection of Dr Patience saying that he was going to carry out a psychiatric examination of Mr Rooney. He did say that we were there to decide whether Mr Rooney was permanently disabled from performing the ordinary duties of a police officer.

 

6. Dr Patience then commenced to question Mr Rooney both in respect of his personal circumstances and in respect of his medical history and employment history. That questioning session lasted a period of no more than 25 minutes."

 

The affidavit by the respondents' solicitor is generally to similar effect, but the questioning is estimated to have lasted longer, and it is described in greater detail:

"Dr Patience began by introducing himself. Dr Patience then explained that the terms of his appointment by the Scottish Public Pensions Agency as medical referee was to determine 'whether or not Mr Rooney is permanently disabled from performing the ordinary duties of a member of the police force' ... Dr Patience emphasised the medical or clinical purpose of the proceedings before him.

 

Parties then introduced themselves and it was quickly agreed with Dr Patience, on the basis of advice offered by Mr Watson, appearing on behalf of Mr Rooney, and myself, appearing on behalf of the Police Board, arising out of experience obtained by both of us from appearing in similar previous cases before medical referees which we had both attended, the order of the proceedings. The previous earlier cases included several cases where the issue was one of psychological illness and these earlier proceedings before a medical referee had commenced with an examination of the appellant by the medical referee.

 

Accordingly it was agreed by all parties that:-

 

·        Dr Patience would first undertake his psychological examination of Mr Rooney.

·        Dr Watt would then be invited to provide medical observations.

·        I would then be invited to make a statement of the Police Authority.

·        Mr Watson would then be invited to make a statement for Mr Rooney.

 

Dr Patience then proceeded to interview Mr Rooney at some length and in some detail. As a lay onlooker it appeared to me that it was not simply random questioning but had structure, purpose and relevant content to elicit from Mr Rooney information which would further inform Dr Patience's psychological assessment of Mr Rooney. It covered Mr Rooney's life history, gambling addiction, family and other relationships, and personal and private circumstances. This detailed examination of Mr Rooney by Dr Patience lasted for approximately forty to forty five minutes."

 

Dr Watt states in his affidavit:

"It was my impression at the time that Dr Patience conducted a thorough inquiry. I remember that he made a detailed inquiry into Mr Rooney's background and psychiatric symptomatology. It was my understanding that Dr Patience had a significant amount of detail available to him in advance of the hearing and that this formed part of his assessment."

 

Dr Patience himself states:

"9. After both parties had put forward their respective positions I then interviewed Mr Rooney for a similar length of time, perhaps about 10 - 15 minutes. This was a pretty standard psychiatric assessment. I believe that I introduced this stage in proceedings by indicating that I needed to ask Mr Rooney a number of questions. Nobody else indicated that they had any difficulty with that.

 

10. We all remained seated at the table. I then started my assessment, asking Mr Rooney a number of questions. I made 2 pages of notes of the issues that I discussed with Mr Rooney. Mr Rooney was cooperative and was able to answer the questions put to him as part of the assessment. None of the others were involved in that process, although they were present in the room at the time.

 

11. The assessment itself would have addressed Mr Rooney's personal history including his schooling and early life. I would not have gone through a lot of the uncontentious matters in any great detail as these were all documented in the two psychiatric reports. However, I would have covered issues such as Mr Rooney's sex life as that would be part of taking a routine personal history. I also covered Mr Rooney's police service as this would relate to his more recent and current circumstances and was an issue related directly to the Appeal itself. I certainly discussed with Mr Rooney his gambling problem and I recalled him indicating that he had been declared bankrupt as a consequence of his gambling. All of the issues that I covered in the psychiatric assessment I documented in the notes that I wrote as I went along.

 

12. I don't believe that I had the psychiatric reports or the occupational health records with me in the meeting. I had read through both the psychiatric reports and the occupational health records prior to the meeting. I had prepared brief notes in advance of the meeting setting out the issues that I would need to cover, but I wasn't making direct reference to either the medical notes or the reports during the meeting itself. I was carrying out an independent psychiatric assessment. This was without reference to the two psychiatric reports. I sued the reports and the occupational health records as background only."

 

We have been provided with a copy of the three pages of notes taken by Dr Patience at the time. They cover the petitioner's personal history, his past psychiatric history and his past medical history.

[15] Following the hearing, Dr Patience obtained additional medical and personal records, as we have explained. On 22 November 2004 he issued his decision in the form of a letter, which was in the following terms:

"Further to the Medical Appeal Hearing regarding the above named and held at Shawpark Resource Centre on 26 October 2004 I have now been able to consider the information received at the meeting and supplied by the police authority and the appellant.

 

Personality Disorder is characterised by persistent patterns of behaviour, lifestyle and mode of relating to others which are typically inflexible and represent an extreme or significant deviation from the average individual. It is associated with significant problems in social functioning and performance, and is usually first apparent in late childhood. Mr Rooney is a competitive tenacious individual who has a strong sense of personal rights and attributes events in self referential manner. His history of serious gambling resulting in bankruptcy indicates serious psychopathology suggesting an inability to learn from experience. He demonstrates some insight to his character, reporting himself as the 'most stubborn bloody minded person I have ever met' indicating that he is aware that he is at the extreme for this particular character trait.

 

There is sufficient information to conclude that Mr Rooney suffers from a Personality Disorder which I do not consider to be treatable.

 

I consider that he is, as a result of this condition, permanently disabled from performing the ordinary duties of a member of the police force."

 

 

The decision of the Lord Ordinary

[16] The Lord Ordinary considered that Dr Patience's decision letter should be approached on the basis that Dr Patience was, in that letter, "attempting to set out the reasons which lead him to his conclusion". Approaching the decision letter on that basis, the Lord Ordinary stated:

"When I consider the reasoning in [the letter], I do not find it intelligible in the circumstances of the case and I am of the view that the rest of 'Wednesbury unreasonableness' is met."

 

In support of that conclusion, the Lord Ordinary identified specific shortcomings in Dr Patience's reasoning, as they appeared to her to be. These focused particularly on Dr Patience's statement that personality disorder "is usually apparent in late childhood", his statement that the petitioner's "history of serious gambling resulting in bankruptcy indicates serious psychopathology suggesting an inability to learn from experience", and the petitioner's length of service.

[17] In relation to these matters, the Lord Ordinary stated:

"I am unable to determine any reasoning which makes sense in the context of a case where it appears that the petitioner, whatever his personality, has in fact performed the duties of a police officer from 1979 to 1993 and from 1999 to 2002. [Dr Patience] appears to proceed on the basis that the personality disorder is not a problem which occurred at or about the time when the petitioner ceased duties as a police officer. He appears to consider that the problem of personality disorder is longstanding and predated and continued during periods when it is not disputed the petitioner was working as a police officer. The first respondent makes no conclusions of fact to the contrary. He gives no further explanation of his reasoning process. It is also not disputed that the petitioner's history of serious gambling ceased in about 1993 and that since that date he has continued to be a non-gambler and member of Gamblers Anonymous. That undisputed history does not support the conclusion that he has an inability to learn from experience. One must question whether the first respondent was aware that the petitioner had ceased gambling and that he had resumed work for a number of years following his cessation of gambling. I consider that, standing the reasons given, the failure to deal with the petitioner's history of cessation of gambling and the performance by the petitioner of the duties of a police officer for some years thereafter is unintelligible. The reference to the problem in social functioning and performance usually first becoming apparent in late childhood is also unintelligible in this case. It is unclear whether the decision maker is making a finding that the petitioner falls within the typical pattern or is atypical. If the former, [Dr Patience] does not appear to take into account that, whatever his personality, the petitioner performed the duties of a police officer from 1979 to 1993 and for a period thereafter."

 

The Lord Ordinary also considered the contention that Dr Patience had failed to carry out an examination of the petitioner and was accordingly not in a position to form any opinion. She concluded that it would be necessary to hear oral evidence before deciding whether that contention was well-founded. In reaching that conclusion, she referred to the affidavits which we have mentioned, and also to a letter dated 30 January 2006 which was sent, following the commencement of these proceedings, by the solicitors to the Medical and Dental Defence Union of Scotland ("MDDUS"), on behalf of Dr Patience, to the petitioner's solicitors. The purpose of the letter was to inform the petitioner's solicitors that the MDDUS was content that Dr Patience's decision should be defended by the respondents, and that Dr Patience would not therefore be taking part in the proceedings. In the course of the letter, the solicitors wrote:

"We consider that Dr Patience was placed, as is often the case for medical referees under these regulations, in a most difficult position. Dr Patience is of course not legally qualified. The regulations required him to act in a quasi-judicial capacity and to construe complex regulations that have been the subject of repeated litigation in recent years, and to grasp legal distinctions of some nicety ... However, 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. It remains a matter of concern that legally qualified assistance is not generally provided to medical referees in attempting to reach their decisions in such circumstances."

 

The letter followed a standard form used by the solicitors in such cases. The passage which we have quoted, in particular, follows a standard form of words. In that regard, we have been provided with a letter sent in another case where the same words are used.

[18] In explaining her conclusion that oral evidence required to be heard before it could be decided whether Dr Patience had carried out an examination of the petitioner, the Lord Ordinary stated:

"There are differences in the affidavits which may or may not be significant. In paragraph 9 of the affidavit of [Dr Patience], he states inter alia that during the meeting on Tuesday 26 October 2004 he interviewed Mr Rooney in the presence of others for perhaps about 10-15 minutes. He states 'this was a pretty standard psychiatric assessment. I believe that I introduced this stage in proceedings by indicating that I needed to ask Mr Rooney a number of questions'. He does not state that he informed the petitioner that he was carrying out a psychiatric assessment. The affidavit is silent as to how [Dr Patience] carried out his task in reaching a decision ...

 

It is important to note that [Dr Patience] does not give any information about how he reached his decision either in [the decision letter] or [his affidavit]. [Dr Patience] explains in [his affidavit] what he considers he was doing at the interview but that is all he explains. Thereafter he received further substantial written information. To add to the difficulty, [Dr Patience's] solicitors wrote the letter [dated 30 January 2006] ...

 

Even if this was a standard letter, it is issued on behalf of [Dr Patience] and presumably on his instructions. His solicitors are informing the court that [Dr Patience] apparently did not proceed on the basis merely of making his own diagnosis but in some way was applying the appropriate tests to unspecified 'convoluted factual allegations'. In these circumstances, if the contentions in relation to this part of the petition are to be further explored I would wish to hear evidence before considering further submissions."

 

Discussion

[19] In considering the function of a medical referee under the Regulations, and the procedural obligations incumbent upon him or her, the starting point is the relevant provisions of the Regulations.

[20] In terms of Regulation A20, the decision whether a police officer ought to retire on the ground that he is permanently disabled for the performance of his duty is that of the police authority. It is implicit in Regulation A20 that, in taking that decision, the police authority are required to act on a medical opinion; and the retirement will be void if, on an appeal against that medical opinion, the medical referee decides that the appellant is not permanently disabled. In terms of Regulation A12(1), a reference 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. It follows, as the Court of Appeal held in R (McGinley) v Schilling [2005] ICR 1282, that the medical referee is required to decide the question whether the appellant is permanently disabled (and the other questions which arise under Regulation H1(2)) as at the time when he is making his determination, rather than the time of the medical practitioner's certificate; a conclusion which is also supported by other provisions of the Regulations to which the Court of Appeal referred.

[21] Regulation H1 makes further provision for the obtaining by the police authority of the medical opinion on which they are required to act. Where the police authority are considering whether a person is permanently disabled, they must refer that question (and certain further questions) for decision to a medical practitioner selected by them. The decision of the selected medical practitioner is then expressed in the form of a certificate.

[22] Regulation H2 makes provision for an appeal by the person concerned (but not the police authority) against the decision of the selected medical practitioner as set out in his certificate. The appeal is to be decided by an independent person appointed by the Secretary of State (now the Scottish Ministers) as the medical referee. In terms of paragraph 3 of Schedule H, the medical referee is required to appoint a time and place "for interviewing the appellant and for any such further interviews or examinations as he may consider necessary". In terms of paragraph 5, any interview or examination may be attended by the selected medical practitioner and any duly qualified medical practitioner appointed for the purpose by either party. In the case of McGinley, May LJ (with whose reasoning Pill LJ agreed) observed (at paragraph 19):

"This plainly indicates that the medical referee is entitled, and perhaps in certain circumstances obliged, to consider fresh evidence. He is certainly entitled to, because paragraph 3 refers to 'such further interviews or examinations as he may consider necessary'. He may be obliged to under paragraph 5 by inference if a duly qualified medical practitioner attends the examination or interview. No doubt such attendance would be and could only be useful if the duly qualified medical practitioner was going to be able to say something."

 

We respectfully agree with those observations.

[23] In terms of Regulation H2(3), the decision of the medical referee is, if he disagrees with any part of the certificate of the selected medical practitioner, to 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. In effect, therefore, the question for the medical referee is whether he or she disagrees with the certificate of the selected medical practitioner. Considered in isolation, this might be thought to suggest that the appeal to the medical referee was a review of the decision of the selected medical practitioner, rather than a re-hearing. That interpretation would not however be correct. As we have explained, the medical referee is required to consider the relevant questions as at the date of his determination, not the date of the decision of the selected medical practitioner, and he or she is entitled to consider information which was not before the selected medical practitioner. As May LJ observed in the case of McGinley, at paragraphs 34-36:

"There are, in my judgment, clear indications here that this appeal to the medical referee is a rehearing. It is an appeal from the decision of the police authority themselves, not from an independent decision. The medical referee is the first independent person to consider the matter. This suggests that the appeal should be a full reconsideration, taking account of, but unconstrained by, the previous decision of the selected medical practitioner. It would also in general be odd if a doctor was asked to do other than determine matters of this kind at the time at which he was making the determination.

 

Schedule H enables the medical referee to receive additional evidence. It would be very odd indeed, I think, if this was only directed to what the position had been at some date in the past. The same, it seems to me, applies to the fresh evidence provision in regulation H3(2).

 

I do not find what I regard as a literalist submission as to the import of the word 'disagrees' in regulation H2(3) persuasive. You can readily disagree with someone else's decision upon different or additional information, your disagreement being formulated at a later time than the original decision. As the judge said, the questions themselves are in the present tense. The natural meaning, I think, of regulation H2(3) is that the medical referee is disagreeing at the date of his decision."

 

[24] Although the appeal to the medical referee can aptly be characterised as a re-hearing as opposed to a review, and new information placed before the medical referee may be described as "fresh evidence", it is necessary to bear in mind that there are significant differences between the proceedings before the medical referee and judicial proceedings. The questions whether a person is disabled, and as to the permanency of the disablement, are medical questions which require the application of specialised medical knowledge and experience. In answering those questions, the medical referee is not simply trying an issue between the appellant and the police authority. Although the appellant and the police authority are each entitled under paragraph 4 of Schedule H to submit a statement to the medical referee, they are not required to do so. The medical referee is required, by paragraph 3 of Schedule H, personally to interview the appellant and to carry out such further interviews or examinations as he may consider necessary. The effect of Regulation H4 is to require the appellant to submit himself to such medical examination, and to attend such interviews, as the medical referee may consider necessary in order to enable him to make his decision. Other than that, the only provision as to the involvement of the appellant and the police authority in the interviews and examinations conducted by the medical referee is that, under paragraph 5 of Schedule H, they may each appoint a medical practitioner to attend any such interview or examination. As that provision indicates, the interview and examination are envisaged as being of a medical character. As was observed by Lord Reed in Strathclyde Joint Police Board v McKinlay 2005 SLT 764 at paragraph 48:

"The function of the medical referee thus has an investigative character, rather than being purely adjudicatory. He carries out such examinations and interviews of the appellant as he considers necessary. He is entitled to rely on his own medical knowledge in reaching his decision. He is not restricted to accepting or rejecting the respective contentions (if any) of the appellant and the police authority. He is free to form his own view, although it may not coincide with the contentions of either party."

 

[25] As was explained in the case of McKinlay (at paragraphs 49-52), the nature of the issues which the medical referee has to determine will vary from case to case, and are not necessarily confined to issues of a medical nature. In the present case, however, the issues arising on the appeal were questions of medical diagnosis and prognosis. The critical questions which Dr Patience had to determine were whether the petitioner was suffering from a psychiatric condition ("infirmity of mind", in the language of Regulation A12(2)) which rendered him unable to perform the ordinary duties of a police officer and, if so, whether the disablement was likely to be permanent. The decision on the first question depended in part upon the correct diagnostic inference to be drawn from the petitioner's symptoms and history, so as to identify any relevant condition by which he was affected, and in part upon an assessment of the impact of that condition upon his fitness for police duties. The decision on the second question turned on the correct prognostic inference to be drawn, in the light of knowledge of the condition in question and its susceptibility to treatment. Dr Patience's decision thus depended, in the first place, upon establishing the petitioner's symptoms, establishing his history (so far as necessary for the purposes of diagnosis) and applying expert medical knowledge in order to arrive at an opinion as to diagnosis and prognosis; and, in the second place, upon assessing the impact of the petitioner's condition upon his fitness for police duties.

[26] In relation to the first of these matters, Dr Patience's decision was challenged before the Lord Ordinary on the basis, first, that Dr Patience had failed to carry out an examination of the petitioner. As we have explained, the Lord Ordinary considered that, if she had not quashed the decision in any event on the ground of irrationality, she would have required to hear oral evidence before determining this contention. Before this court, the submission of counsel for the petitioner was not that Dr Patience had failed to carry out any examination, but that he had failed to carry out an adequate examination. In particular, he had not made it clear to the petitioner that a medical examination was being carried out, and the examination had been carried out in the presence of the parties' solicitors. Counsel for the respondents, on the other hand, submitted that there was no requirement under the Regulations to carry out an examination. In the context of psychiatry, there was no clear distinction between an interview and an examination. The adequacy of any examination was a medical matter which was not justiciable in an application for judicial review.

[27] As counsel for the respondents pointed out, the Regulations do not impose upon the medical referee a requirement to carry out an examination of the appellant, as distinct from interviewing him or her; and circumstances can be envisaged where an examination would not be necessary. In an appeal where a medical diagnosis is at issue, however, it would ordinarily at least be necessary for the medical referee to examine the appellant before he could come to a decision. Whether such an examination would be essentially different from an interview, particularly in a case concerned with questions of psychiatry, would depend on the circumstances.

[28] In the present case, it is clear from Dr Patience's affidavit that he carried out an examination of the petitioner: what he describes as "a pretty standard psychiatric assessment". It is apparent that he took detailed notes. Dr Watts, who was the only other medically qualified person present, confirms in his affidavit that Dr Patience made a detailed inquiry into the petitioner's background and psychiatric symptomatology. Although the petitioner and his solicitor do not appear, from their affidavits, to have appreciated that a psychiatric examination had been carried out, they confirm that Dr Patience questioned the petitioner about his medical history, his gambling, his employment history and his personal circumstances.

[29] The adequacy of a medical examination is a matter of medical rather than legal judgment. It could only be in exceptional circumstances that a court, on an application for judicial review, could hold that an examination had been medically inadequate. In the present case, there is no basis on which the court could so hold. It is not apparent, in particular, that the adequacy of Dr Patience's examination was undermined to any extent by any failure on the part of the petitioner and his solicitor to understand that an examination was being carried out, or by the fact that the parties' solicitors were present. Counsel for the petitioners did not found on the terms of the letter sent by the solicitors to the MDDUS, to which the Lord Ordinary referred, and it appears to us to be of no materiality.

[30] The second ground on which Dr Patience's decision was challenged was that his reasons for diagnosing a personality disorder, as expressed in the decision letter, were manifestly incorrect. He stated that the condition was "usually first apparent in late childhood", but there was no finding in the petitioner's case that it was apparent in his late childhood. Dr Patience also stated that the petitioner's history of gambling suggested "an inability to learn from experience"; but the petitioner had stopped gambling in about 1993 and had been a member of Gamblers Anonymous since then. So ran the argument. As we have explained, this submission was accepted by the Lord Ordinary, who also found unintelligible Dr Patience's conclusion that the personality disorder was a longstanding problem, which had therefore existed during periods when the petitioner had been working as a police officer.

[31] The Regulations do not expressly require the giving of reasons: all that is said, in Regulation H2(3), is that 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. Nothing is said about the form of the decision where the medical referee agrees with the certificate of the selected medical practitioner. No argument was addressed to us as to whether the medical referee was required, either as an implication of the legislation or under the common law, to give reasons for his decision. In the circumstances we shall express no opinion on that question. We would, however, observe that the requirements of fairness, which underpin any common law duty to give reasons, depend upon the particular context. The character and extent of any reasons which need be given must depend, in particular, on the nature of the question which has to be decided, and on the nature of the decision-making process. As a matter of generality, it would be unrealistic to expect a medical referee to express his decision with the formality and precision which is required in judicial proceedings. Where, in particular, the question at issue is one of medical diagnosis or prognosis, and the decision-maker is a medical expert who is expected to use his own medical knowledge and experience rather than adjudicating between competing bodies of evidence, a brief explanation of the medical referee's diagnosis or prognosis could be expected to suffice, ordinarily at least: the medical referee is not sitting an examination paper in medicine, and an elaborate discussion of questions of medical science would be out of place.

[32] The argument advanced in the present case was rather that where reasons are given then, whether they are legally required or not, the court is entitled to scrutinise them. We accept as a general proposition that, even where there is no requirement to give reasons, the court is entitled to review such reasons as may be given voluntarily. If such reasons disclose, for example, that a relevant consideration has been disregarded, or that an irrelevant consideration has been taken into account, or that an error of law has been made, then it is no answer to a challenge to the decision to say that there was no duty to give reasons.

[33] The letter in which Dr Patience intimated his decision begins by referring to the hearing held on 26 October 2004 and the information received then and subsequently. It then states:

"Personality Disorder is characterised by persistent patterns of behaviour, lifestyle and mode of relating to others which are typically inflexible and represent an extreme or significant deviation from the average individual. It is associated with significant problems in social functioning and performance, and is usually first apparent in late childhood."

 

In this passage, Dr Patience is providing a brief explanation, couched in language accessible to a layman, of the psychiatric concept of a personality disorder. The statement that such a condition "is usually first apparent in late childhood" is not a finding that it was apparent in late childhood in the petitioner's case. Nor is it inconsistent with the absence of such a finding in the petitioner's case: "usually" does not mean "always". We find nothing unintelligible about Dr Patience's explanation. We should add that it was accepted before this court that the petitioner's gambling problem had started at school, as Dr Patience had recorded in his notes of his examination of the petitioner.

[34] Dr Patience in his letter next considers the specific case of the petitioner:

"Mr Rooney is a competitive tenacious individual who has a strong sense of personal rights and attributes events in self referential manner. His history of serious gambling resulting in bankruptcy indicates serious psychopathology suggesting an inability to learn from experience. He demonstrates some insight to his character, reporting himself as the 'most stubborn bloody minded person I have ever met' indicating that he is aware that he is at the extreme for this particular character trait.

 

There is sufficient information to conclude that Mr Rooney suffers from a Personality Disorder which I do not consider to be treatable."

 

[35] As we have explained, the reference to the petitioner's history of gambling as "suggesting an inability to learn from experience" was criticised by counsel for the petitioner, and by the Lord Ordinary. We, however, have no difficulty understanding why Dr Patience should say that a history of serious gambling, pursued to the extent that it resulted in bankruptcy, "indicates serious psychopathology suggesting an inability to learn from experience". Plainly, someone who gambles unsuccessfully, and continues to gamble unsuccessfully until the point is reached when he is prevented by insolvency, has a serious problem, one aspect of which is a disregard of the lesson of his previous experience of gambling: namely, that he is likely to lose his money. Indeed, the reports by Dr Worrall and Dr Stewart recounted that the petitioner's gambling had resulted in the repossession of his house, his borrowing from his mother to repay gambling debts, and his consequent estrangement from members of his family. Dr Patience's clinical judgment that that history indicates serious psychopathology is not inconsistent with the fact that, following his bankruptcy, the petitioner had joined Gamblers Anonymous, and remained a member of that organisation, abstaining from gambling, at the time of the hearing. Dr Patience had been made aware of the petitioner's efforts to control his addiction (e.g. in the reports by Dr Worrall and Dr Stewart, and in the submissions presented on behalf of the petitioner), and we see no reason to infer from the decision letter that he had disregarded that information.

[36] Nor do we have any difficulty understanding the proposition, which we accept is implicit in Dr Patience's opinion, that the petitioner was suffering from a personality disorder throughout the many years of his service in the police. Whether a history of police service would be incompatible with a diagnosis of personality disorder would naturally depend on the circumstances, and would be a matter of medical judgment. In the present case, we see no reason to consider that Dr Patience's diagnosis is placed in question by the petitioner's history of police service (which, as we have explained, involved numerous disputes with Strathclyde Police, complaints by members of the public, and charges of assault).

[37] Dr Patience's letter does not set out a detailed or comprehensive account of the thinking which led to his conclusion that the petitioner suffered from a personality disorder. Nevertheless, his observations concerning the petitioner, read with his explanation of the nature of a personality disorder in the preceding paragraph of his letter ("persistent patterns of behaviour ... typically inflexible ... an extreme or significant deviation from the average individual ... associated with significant problems in social functioning") provide an intelligible basis for his diagnosis, in the following paragraph, that the petitioner suffers from a personality disorder. Although Dr Patience's explanation of his medical opinion might be described as laconic, we cannot detect any error which would warrant the intervention of the court. We should add that Dr Patience's conclusion that the petitioner's disorder was untreatable, and that the petitioner was in consequence permanently disabled from performing the ordinary duties of a member of the police force, was not criticised on the basis of a failure to give reasons.

 

Conclusion

[38] In these circumstances, we shall allow the reclaiming motion, recall the interlocutor of the Lord Ordinary and refuse the application for judicial review.

 


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