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Cite as: [2005] ScotCS CSOH_14, [2005] CSOH 14

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Strathclyde Joint Police Board v. McKinlay [2005] ScotCS CSOH_14 (26 January 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 14

P74/04

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD REED

in the Petition of

STRATHCLYDE JOINT POLICE BOARD

Petitioners;

against

ALISON McKINLAY

Respondent;

For

Judicial Review of a medical certificate under regulation H2(3) of the Police Pension Regulations 1987

________________

 

 

Petitioners: Martin, Q.C., R N Thomson; City of Edinburgh Council

Respondent: Armstrong, Q.C.; Allan McDougall

26 January 2005

Introduction

[1] In 1993 the respondent began service as a police constable with Strathclyde Police. In February 2001 she was certified as being unfit for work due to depression. In June 2002 the Scottish Police Federation contacted the petitioners on behalf of the respondent, contending that she was permanently disabled for the performance of her duty, and intimating that she wished the petitioners to exercise the power available to them to require her to retire. Questions then arose as to whether the respondent was permanently disabled for the performance of her duty, and, if so, as to her pension entitlement.

The Police Pensions Act 1976

[2]      Police pensions are governed by the Police Pensions Act 1976 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".

Under section 1(2) of the Act, such regulations are further required to provide for the payment

"(a) of pensions to and in respect of persons who cease to be members of a police force after having served for such period as may be prescribed by the regulations;

(b) of pensions to and in respect of persons who cease to be members of a police force after such shorter period as may be prescribed by the regulations by reason of infirmity of mind or body;

(c) of pensions to and in respect of persons who cease to be members of a police force by reason of injury received in the execution of their duty;

(d) of pensions to and in respect of persons who cease to be members of a police force on the ground of age; and

(e) of pensions to and in respect of persons who die while serving as members of police forces."

Under section 1(3), the regulations "may contain such consequential or incidental provisions as appear to the Secretary of State to be necessary or expedient."

[3]     
Section 1(2)(b) and (c) are both concerned with what might broadly be described as early retirement on the grounds of ill health. They require a distinction to be drawn between two categories of person: first, those who retire "by reason of infirmity of mind or body"; and secondly, those who retire "by reason of injury received in the execution of their duty". The word "injury" is defined by section 11(5) as including disease.

[4]     
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:

"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".

[5]     
Sections 1(1) and 7 envisage that the scheme to be established by the regulations will be a contributory scheme, but section 7(1) also authorises, in special circumstances, the payment of pensions under regulations made under section 1 out of monies provided by Parliament.

The Police Pensions Regulations 1987

[6]     
The regulations made under the 1976 Act are the Police Pensions Regulations 1987 (SI 1987 No 257), as amended. Part A of the 1987 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:

"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".

[7]     
Part B of the 1987 Regulations deals with what are described as "personal awards", including pensions. Regulation B1 gives effect to section 1(2)(a) of the 1976 Act. It provides for the payment of an "ordinary pension" to a policeman who retires after completing at least 25 years' pensionable service. Regulation B3 gives effect to section 1(2)(b) of the 1976 Act. It applies to "a regular policeman who retires or has retired on the ground that he is or was permanently disabled", and provides that such a policeman is entitled to an ill-health award, consisting of either an ill-health pension or an ill-health gratuity (depending on the circumstances). Regulation B4 gives effect to section 1(2)(c) of the 1976 Act. It provides:

"B4.-(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".

The gratuity and injury pension are described, in the heading of regulation B4, as an "injury award". Whether a policeman is entitled to an injury award under regulation B4, or merely to an ill-health award under regulation B3, thus depends on whether the policeman's permanent disablement is "a result of an injury received without his own default in the execution of his duty". An injury award is more generous than an ill-health award.

[8]     
Certain of the expressions used in regulation B4 are defined elsewhere in the 1987 Regulations. In particular, regulation A4 gives effect to Schedule A, which provides:

"'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' shall be construed in accordance with Regulation A13".

Regulation A11 provides:

"A11.-(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 and, where the person concerned is an auxiliary policeman, during a period of active service as such.

(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 provides:

"A12.-(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:

"A13.- 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".

[9]     
Part H of the 1987 Regulations is headed "Appeals and Medical Questions", and lays down procedures for determining entitlement to awards. In particular, regulation H1, which is headed "Reference of medical questions", provides as follows:

"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 ....

(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".

[10]     
Regulation H2, which is headed "Appeal to medical referee", provides as follows:

"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".

[11]     
Regulation H3, read with regulations H5 and H7, enables a police officer who is aggrieved by the decision of the police authority to appeal to the Sheriff Court (or, in England and Wales, to the Crown Court). That court may, if it considers that the evidence before the medical authority who has given the final decision (i.e. the selected medical practitioner, or the medical referee, as the case may be) was inaccurate or inadequate, refer the decision to him for reconsideration in the light of such facts as the court may direct. In that event, the medical authority has to reconsider his decision and, if necessary, issue a fresh certificate. If the medical authority is unable or unwilling to act, the decision may be referred to a duly qualified medical practitioner selected by the court.

[12]     
Regulation H4, which is headed "Refusal to be medically examined", provides as follows:

"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".

[13]     
Regulation H6 is not directly relevant to the present case, but provides an instructive contrast with regulation H2. Regulation H6 requires certain officers, if they are aggrieved by the decision of the police authority, to appeal to an appeal tribunal. The tribunal includes an advocate or solicitor. Regulation H6 continues:

"(5) Either party may be represented before the tribunal by counsel, by a solicitor or by such other person as appears to him to be appropriate, adduce evidence and cross-examine witnesses.

(6) ... the tribunal shall have regard to the practice of the Crown Court in the case of an appeal under Regulation H5 and the rules of evidence applicable in the case of such an appeal shall apply in the case of an appeal under this Regulation.

(7) Subject to the preceding provisions of this Regulation, the tribunal shall determine its own procedure".

In relation to Scottish police officers, the reference to the Crown Court is to be treated as a reference to the Sheriff Court.

[14]     
Schedule H is headed "Medical Appeals". It provides:-

"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 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.

7.-(1) The medical referee shall be entitled to such fees and allowances as the Secretary of State may from time to time determine.

(2) The said fees and allowances shall be paid by the police authority and shall be treated as part of the police authority's expenses for the purposes of this Schedule.

8.-(1) Save as hereinafter provided, the expenses of each party to the appeal shall be borne by that party.

(2) Where the medical referee decides in favour of the police authority, the authority may require the appellant to pay towards the cost of the appeal such sum not exceeding the referee's total fees and allowances as the authority think fit.

(3) Where the medical referee decides in favour of the appellant, the police authority shall refund to the appellant any expenses actually and reasonably incurred by the appellant in respect of any such interview or examination as is mentioned in paragraph 3."

The Proceedings

[15]     
The request made on behalf of the respondent in June 2002 was a request that the petitioners exercise the power conferred on them by regulation A20. In accordance with regulation H1(2), the petitioners referred to a medical practitioner, Dr A.D. Watt, the questions whether the respondent was disabled; if so, whether the disablement was likely to be permanent; and, if so, whether the disablement was the result of an injury received in the execution of duty. On 9 December 2002 Dr Watt issued a certificate, in accordance with regulation H1(4), setting out his decision. He decided that the respondent was suffering from anxiety and depression, that she was disabled from performing the ordinary duties of a member of the police force, that the disablement was not permanent, and that the disablement was not the result of an injury received in the execution of duty. It followed from Dr Watt's decision that the respondent could not be required to retire under regulation A20, and that she would not in any event have been entitled to an injury award under regulation B4.

[16]     
The respondent appealed against Dr Watt's decision in accordance with regulation H2(2). Dr Ian Collins, a consultant psychiatrist, was then appointed as the medical referee. He was provided with written submissions on behalf of both the petitioners and the respondent, together with a number of documents.

[17]     
In their initial written submissions to the medical referee, provided on about 17 April 2003, the solicitors for the respondent maintained that in determining whether disablement was likely to be permanent, the appropriate test was whether there was no real prospect of the respondent's recovering from the disability in order fully to resume police duties within the foreseeable future, the latter being a period of no more than four years. In relation to the question whether the disablement was the result of an injury received in the execution of duty, the respondent's solicitors enclosed a number of judgments in previous cases. They also enclosed a report by Dr Alex Stewart, a consultant psychiatrist, dated 12 September 2002.

[18]     
In his report, Dr Stewart stated that he had obtained a history from the respondent, which focused upon two matters. The first was her allegation that she had been the victim of bullying at work by a colleague, Constable L, during 1994 and 1995:

"She met her husband in April 1994 when she was working on his shift. Around the same time she met a Police Constable L who she found out did not like her husband and there had been some problem between them before she went on to her future husband shift [sic]. Around August 1994 she found that Mr L made her feel demeaned and useless the whole time that she was working with him. She described his attitude towards her as dreadful and she never felt so small and insignificant in all her life. He found fault with everything that she did irrespective of whether there was a fault or not and he made sure his comments were spread around her colleagues. On one occasion in front of a room full of people, he ripped up a road traffic report that she had completed branding it as shit. He made her repeat the work and with exactly the same contents decided it was acceptable. Every day when she ended up working with him her heart sank and she felt as thoughts [sic] she had been condemned as each time they worked together it was going to be as bad as the last. Because she was a probationer she felt it inappropriate to complain and she hoped that it would stop but it never did.

In September 1994 she talked her Chief Inspector [sic] due to the relationship with Mr McKinlay and her being on the same shift and he arranged for her to be transferred to the Blantyre Station and her confidence returned and she enjoyed her Police duties.

In February 1995 Mr L was transferred to Blantyre. She told her Sergeant about the problems she had had with him before but he did nothing. She discovered later that Mr L and the Sergeant were very good friends and so the bullying continued. She spoke to her friends about Mr L's behaviour and they confirmed that it had happened before but she remained terrified about saying anything because she did not want to rock the boat.

.....

He kept on trying to pick fault with her and as a result she began to have difficulty going to work. She recalled that on one occasion she and another Constable were sent to cover a school crossing but on their way there a woman had reported that her dog had become impaled on a fence and they had to attend to that. When she returned to the station Mr L began to berate her for not carrying out the assigned task. When her colleague who had been with her began to speak up on her behalf Mrs McKinlay broke down.

In the summer of 1995 she went to her Chief Inspector who was well aware of the problem. He consulted the Superintendent and told him all about it. The latter advised her to make a formal complaint but she did not want to do such a thing and cause any further upset. As a result she was moved for a short period of time to Hamilton Sheriff Court and then on to the Larkhall station in December 1995. She felt, however, that she was being victimised in that Mr L was in the wrong and yet he was allowed to remain in his position. In addition he said that he had spoken to colleagues in Larkhall and as a result she was dreading what lay ahead of her. She expected to again be treated badly but was surprised she got on well with everyone. In addition she was told by several people that she should not worry about Mr L as he was just a bit of a bully".

[19]     
The second matter concerned the respondent's treatment following the birth of her child:

"While she was off on maternity leave she received a succession of telephone calls asking her when she was returning from leave. As a result she returned to Police duties a few months after having the baby rather than the six months she should have had but she had decided that she did not want the additional time off. When she did return to work she found things had changed and with the rest of her colleagues she was made to do compulsory overtime and she said with the problems of changing shifts, she became increasingly preoccupied with the arrangements for looking after her daughter when she was at work.

In June 1998 her left patella popped out and she was off work for a further two months. Again she returned earlier to work than she should have done as she did not want people talking about her abusing the system.

Around January 1999 she became increasingly depressed. She felt the Police did not care that she had a child and continually changed her shifts and made her work overtime. Again she did not want to refuse any such request. Male colleagues told her that they had to accept the duties they were given and so should she.

Approaching the New Years Eve at the millennium she found that she was covering the whole of Larkhall. Around the same time she was injured on duty when someone tried to break her wrist and it was thought that she had a fractured scaphoid and she was off work. Throughout she was advised that it was essential that she attended for millennium New Year duty. On Christmas Day 1999 she went down with influenza but despite this reported for her New Years Eve duty although she felt like vomiting. Throughout the year 2000 she became increasingly more depressed .....

In July 2000 she had an operation [on her shoulder] .... and she was off for seven weeks.... Again she was contacted at home to ascertain when she was returning to work. It was only when the nursing sister from the police came to see her husband in August 2000 that she discovered that Mrs McKinlay was off ill too and that no 28 day report has [sic] been submitted to her. She starting binge eating. As a result she consulted her General Practitioner, Dr Earley in November 2000 but did not want to go off work despite becoming increasingly depressed ....

Eventually on 9 February 2001 she was placed in sick leave [sic] and never returned to her duties thereafter .... No one from the station contacted her and it was only the Nursing Sister from the Police attempted to see her husband [sic] in April 2001 that she discovered that Mrs McKinlay was off ill too.

.....

In September 2001 she saw the Police doctor Dr McLay. He said that she was depressed and referred her to the force psychologist Dr Gray-Taylor. She saw her on one occasion..... She was to have another appointment with Dr Gray-Taylor but had difficulty in finding someone to look after her daughter so could not attend. A third appointment was arranged with Dr Gray-Taylor but she injured herself following a fall down stairs. She was not offered further appointments ......"

[20]     
Taking the respondent's account pro veritate, Dr Stewart diagnosed that the respondent:

"is suffering from a severe agitated depression which fulfils criteria for DSM4 major depression".

Dr Stewart expressed the following opinion, based upon an acceptance of the respondent's account:

"This lady who gives no previous history of psychiatric disturbance of any type has no evidence of any family history of depression has become severely depressed following sustained systematic bullying from a colleague, which has occurred in the course of her duties as a Police Officer. She made various attempts to discuss her problems with Senior Officers who generally offered her little support. Even the one counselling session she had with the force psychologist she did not find particularly helpful. Due to unrelating circumstances [sic] she could not keep two appointments and no further appointments were offered.

It is my opinion that if some type of anti-bullying policy had been in effect with Strathclyde Police and had Mrs McKinlay been given appropriate support by the Police Authorities, it is likely that she would not have become so severely depressed and there is the possibility that she would have been able to continue in her Police career. Not only that, she felt somehow responsible for what was happening to her as she was the one who was transferred out of the Blantyre Station while the bullying perpetrator was allowed to remain where he was.

Mrs McKinlay has now almost developed a phobia with regard to her returning to her Police duties to the extent that when she contemplates such a thing, the intensity of her depression increases. It is my opinion therefore that she is permanently disabled for performing her duties as a Police Officer and she should be retired from the force on health grounds".

[21]     
In their submissions to the medical referee, provided on about 22 May 2003, the petitioners responded to the submissions which had been made on behalf of the respondent. In relation to the appropriate test for determining whether disablement was likely to be permanent, the petitioners submitted that the question was whether it was more likely than not that the officer would be unable to carry out the ordinary duties of a member of the police force before her compulsory retirement age (which, in the case of the respondent, would be on her reaching the age of 55, in December 2024). In relation to the question whether the disablement was the result of an injury received in the execution of duty, the petitioners drew attention to certain passages in the judgments provided by the respondent's solicitors, as indicating the appropriate test. In relation to the relevant facts, the petitioners responded to the account narrated in Dr Stewart's report, by reference to contemporaneous documents, copies of which were provided along with the submissions.

[22]     
In relation to the allegation of bullying by Constable L, the petitioners stated in their submissions:

"Part of the assessment process, for probationary officers, includes consideration of any welfare issues which may be thought to arise. With reference to the progress reports completed in relation to Constable McKinlay [between September 1993 and September 1995], the only matter which seems to be mentioned under this heading relates to Constable McKinlay's ongoing divorce from her first husband ..... The assessment of her, in those same reports, by her fellow officers (under the heading 'PERSONALITY') seems unremarkable. In the assessments from the Police College the overall conclusions from her Basic course, were that Constable Garden (as she then was) had a lack of self-projection which was hampering her overall effectiveness - though resolutions to that apparent shortcoming were suggested. The assessments from her Advanced course ..... seem more positive though still note a degree of reserve on her part and an invitation for greater enthusiasm.

Likewise, with the assessments from the Force Training Centre ..... Constable McKinlay's performance seems, overall, acceptable and her enthusiasm and enjoyment of her job seems to have been noted by each of her counsellors.

These documents, I would submit, do not reflect the set of circumstances apparently narrated by Constable McKinlay to Dr Stewart ..... It appears that, if anything, it is the ongoing divorce proceedings from Mr Garden which were noted as having some overall effect on her performance ......

The claim made in Dr Stewart's letter that Constable McKinlay moved to Blantyre in September 1994 is not borne out by the papers available to me. The third progress report - said to have been completed on 26 January 1995 - shows her as being at Hamilton Police Office and it is not until the final progress report - completion of which was commenced in August 1995 - that she is shown as working at Blantyre. I am also informed that Constable McKinlay's Personal Record confirms the date of her transfer to Blantyre Police Office to be 20 February 1995.

The account which seems to have been given to Dr Stewart by Constable McKinlay as regards her dealings with Constable L is not, in large part, borne out by the contemporaneous documentation available to me. More particularly, I enclose herewith a report - Appendix 2 - prepared by Inspector W Matheson on 14 November 1995 and completed by Superintendent (now Assistant Chief Constable) Pearson around four weeks or so later .....

Put very broadly, I would submit that the report does reflect some of the difficulties alluded to by Constable McKinlay in her relationship with Constable L. She is said to have described, to Inspector Matheson, conduct of Constable L towards her as a colleague more senior to her in terms of length of service and experience (rather than rank) as 'bullying' and 'oppressive'. Another officer, Constable M, is also said to have described himself as having 'fallen victim' to the way in which Constable L speaks with colleagues.

There is also some mention, in Inspector Matheson's report, of a perception that Constable L and Constable McKinlay's husband (Constable Ian McKinlay) did not get on.

It is also, however, I think worthwhile pointing out that Inspector Matheson's report reflects comments from colleagues which are, broadly, supportive of Constable L's general conduct overall and it is noted that Constable L was regarded as a successful supervisor for other female officers.

It appears, from the report, that an incident involving her being asked to carry out road crossing patrol duties, said to have arisen on 3 November 1995, was the 'catalyst' at least insofar matters coming to the attention of Inspector Matheson were concerned. Notwithstanding the suggestion in Dr Stewart's letter that it was only Constable L who 'upbraided' Constable McKinlay in connection with this incident, Inspector Matheson's report reflects there to have been another officer who had spoken to Constable McKinlay about her late arrival at her assigned place of duty and that Constable L then raised the matter subsequently with her. It does not, however, appear that Constable McKinlay has raised any complaint either then, or now, about having been 'taken to task' by this other officer. It is somewhat difficult, in all the circumstances, then, to see Constable L also raising the matter with Constable McKinlay as part of any sort of course of 'bullying' by him towards her.

It is suggested, in .... Dr Stewart's letter, that Constable McKinlay's move to Larkhall Police Office resulted in her feeling victimised. Inspector Matheson's report, however, suggests that a move away from Blantyre was in fact proposed by Constable McKinlay herself.

It is also, I think, significant that Inspector Matheson's report reflects both himself and Sergeant Docherty, at apparently different times, as having spoken with Constable McKinlay before 3 November 1995 and enquiring as to whether she had any difficulties either specifically in working with Constable L, or more generally, and both appear to have been informed that there were none.

In the appendix prepared by Superintendent Pearson to Inspector Matheson's report, you will note that Constable L was counselled by the Superintendent and left in no doubt as to how his reported conducted was perceived. He was moved to another Group.

It is also, I think, of significance that, in her discussion with Superintendent Pearson, on 14 November 1995, Constable McKinlay expressed her satisfaction with the actions he had taken and acknowledged that Constable L's conduct towards her was similar to that displayed by the said officer to his other colleagues. It is also, I think, significant in terms of what Constable McKinlay has described to Dr Stewart as having happened to her subsequently, that Superintendent Pearson counselled her to ensure that she raised similar issues in the future for the attention of her immediate supervisors to enable early resolution of same".

[23]     
In relation to the respondent's allegations concerning her treatment following the birth of her child, the petitioners stated in their submissions:

"The contention that Constable McKinlay received 'a succession of telephone calls' whilst on maternity leave is not one I am in a position to confirm or refute. All other things being equal, I see no reason why Constable McKinlay's colleagues and supervisors should not make contact with her while she was on maternity leave and, in the course of any conversations they may have had with her, enquire, amongst other things, as to her intended date of return. What does, at least, appear clear is that periods of maternity leave which Constable McKinlay proposed to take in her report of 8 April 1997, viz commencing on 27 September 1997 and concluding on 4 January 1998 are confirmed, in her Personal Record, as being the actual period of her maternity leave. There is no suggestion, either, that Constable McKinlay was not able to take the further period of annual leave, and rest days, she had asked for - bringing about her actual return to duty on or about 23 January 1998. The basis for Constable McKinlay's belief, or contention, that she was in some way deprived of a lengthier period of maternity leave to which she appears, now, to believe she was entitled, is not borne out by the contemporaneous records.

In ....Dr Stewart's letter, he narrates having, apparently, been told by Constable McKinlay that in June 1998 her left patella popped out and she was off work for a further two months. According to the contemporaneous absence management record - a copy of which is enclosed herewith as Appendix 4 - Constable McKinlay was off between 8 September and 3 November 1998 with an injury to her knee which is described as 'damage to a ligament arising whilst on holiday'. It is difficult for me to offer any comment on Dr Stewart's remark that Constable McKinlay returned earlier than she should have done because she did not want people talking about her abusing the system. Other than Constable McKinlay being reminded to submit medical certificates timeously, there is no suggestion, in the absence management report, that Constable McKinlay's period of absence was regarded as in any way remarkable and, in any event, notes that she returned to perform light duties for a period of three to four weeks, at the conclusion of her period of sickness absence, while she was continuing to receive physiotherapy. There is no suggestion that Constable McKinlay returned to duty other than in circumstances when her General Practitioner had certified her as fit to resume work.

There is then a reference, in Dr Stewart's letter, to Constable McKinlay saying she became increasingly depressed around January 1999 and to her perception that the police did not care about her. This does not appear to be reflected in the contemporaneous appraisal reports completed in relation to Constable McKinlay from and after the time that she was assigned to work at Larkhall ...... In particular, the Referee's attention is drawn to the appraisal for 1998 which notes Constable McKinlay having expressed the view, on 7 January 1999, that she had '....discussed the contents of this appraisal with Inspector McDougall and I am very happy with them'. It also notes positive views expressed by her Acting Chief Inspector and Deputy Divisional Commander. Likewise, the appraisal completed for the following year has Constable McKinlay again expressing the view that she feels her appraisal to have been fair and accurate. In none of these appraisals is there any suggestion that Constable McKinlay felt depressed nor even that she was perceived, by her supervisors, as performing at less than an acceptable level. Instead, Constable McKinlay is appraised positively.

That overall positive appraisal is, I would submit, borne out by the support offered to Constable McKinlay in her application for transfer to the Traffic Department. Though unsuccessful in that application, the officers who interviewed her on 16 February 2000 appear, from their assessment, to have viewed her positively. Copies of the relevant papers are also enclosed ..... One is moved to question whether an officer who reports to have been depressed and to feeling unsupported would have been seeking a transfer to another Department within the Force where - presumably - the same kind of issues about working shifts and overtime would still arise.

Again it is submitted that regard ought to be had to the very clear guidance offered to Constable McKinlay by Superintendent Pearson in the latter part of November 1995. Whilst, on one view, it might have been suggested that as at that time Constable McKinlay was, relatively speaking, an inexperienced police officer just out of probation who had been noted, at least at the Scottish Police College, to somewhat lack confidence and, therefore, that one might have considered there to be some credible explanation for her not raising concerns she may have had about her relationship with Constable L at the time, it is, I would respectfully submit, far less credible that the difficulties Constable McKinlay tells Dr Stewart she was experiencing in 1999 and 2000 were not raised by her with her supervisor. She was not assessed, at that time, as lacking confidence. Indeed, her remarks to her supervisor appear to have presented entirely the opposite picture.

Again under reference to the sickness absence report ..... the injury to Constable McKinlay's wrist is said to have occurred on 23 December 1999. There is no indication from the report of her having suffered from influenza on Christmas Day that year - though she was, in any event, absent from work by reason of the said wrist injury. The absence report does, however, narrate an earlier period of absence through illness on Constable McKinlay's part, with that illness being described as 'influenza'.

With reference to the same absence report, and in connection with the period of absence, on Constable McKinlay's part, following on and after her shoulder operation, it is clear that there was regular contact with her by her supervisors and that reports were prepared regularly. I would submit that the same goes for the subsequent period of absence commencing on or about 14 February 2001. Insofar as it is suggested in Dr Stewart's letter ....that no-one from her Police Office contacted her, you will note that there appears to have been contact, by phone, by an Inspector Black on 5 March 2001 recording Constable McKinlay still to be unfit for duty, that she was attending her family GP the following day, 6 March 2001, and that a further medical certificate was expected. Thereafter it indicates regular contact as taking place between Constable McKinlay's supervisor and the officer herself, as well as with her husband. Whilst it is to be regretted that there appears to have been a period when there was no contact as between Constable McKinlay and the Force's Occupational Health & Welfare Unit, the fact remains that the officer's supervisors were in regular touch with her, or her husband. If either, or both, of them wished to draw the attention of her supervisors to any perceived lack of contact on the part of the Occupational Health &Welfare Unit, they were free to do so".

[24]     
The petitioners' submissions also referred to a number of medical opinions. In particular, the Force's senior occupational physician, Dr P Warnock, had examined the respondent and prepared a report dated 25 February 2002:

"Essentially, the difficulty seems to have revolved around shift working in relation to childcare. This is of course a familiar question. I am quite sure that she was genuinely ill and needed to go off work initially. Of course this took her out of the immediate situation and I am sure that she would have recovered but for the continued worry about returning to the same circumstances added to the inevitable financial consequences of absenting herself from her duties. She is still stuck in this conundrum ....".

[25]     
The petitioners' submissions concluded:

"Constable McKinlay apparently wishes to leave Strathclyde Police, on the basis of her securing an ill-health retiral. Strathclyde Police does not share that view, nor express any view other than the wish to have Constable McKinlay to return to work. Flexible working arrangements, have long been available to officers such as Constable McKinlay and if it is her perception that certain patterns of work have caused her, and her husband, difficulties insofar as child care arrangements are concerned, then I see no reason, as a matter of general principle, why a solution to those perceived difficulties cannot be identified and put into place.

I would endorse the views expressed by Dr Watt at the conclusion of his own report that it is inappropriate for the Pension Regulations to be apparently deployed in an effort to resolve uninvestigated or unsubstantiated allegations of maltreatment.

For the foregoing reasons, I cannot see, in all the circumstances, that it can be concluded, satisfactorily, that there is sufficient evidence to support the contention that Constable McKinlay is permanently disabled from performing the ordinary duties of a Police Constable. Neither does it appear to me that, on the hypothesis that it is concluded she is permanently disabled, that it can be concluded that it is in consequence of an injury on duty".

[26]     
In response to these submissions, further submissions were provided on behalf of the respondent on about 2 June 2003. These were brief, but stated in particular that flexible working arrangements had never been made available to the respondent, and that it was unlikely that such arrangements would now assist her. Her occupational health records were enclosed. These included a number of documents bearing on her complaint that she had not been contacted while off work. It appears from the records that, following the operation on her shoulder in July 2000, a "28 day report" was prepared by her inspector and received by the occupational health nursing officer. It also appears that, after the respondent went off work in February 2001, she was examined at home by a doctor from the Occupational Health and Welfare Unit in March 2001. It also appears that the respondent requested that she should not be contacted by officers from her division. A memorandum by the respondent's Chief Inspector, dated 22 January 2002, recorded:

"2. She is suffering from depression which, she claims, was triggered by a series of operational experiences that resulted in late changes of shift sequences, cancellation of time-off and changes in deployment at short notice, all of which exacerbated and caused difficulties in her child-care arrangements.

.....

7. It would appear that Allison's difficulties arise from her trying to co-ordinate and balance domestic family arrangements and the demands of a full-time career in the police service. There is no indication that her role as a constable and her working environment has caused her debility".

Dr Warnock saw the respondent on 20 February 2002, and recorded:

"Became depressed because of difficulty reconciling shift work with childcare. There seemed to be no other significant precipitants and I am sure she would have recovered from what [is] obviously a genuine but fairly ordinary first episode of depression had it not been for the continued dynamics of the situation and the prospect of returning to the same".

Dr Warnock saw the respondent again on 13 June 2002, following her request to be considered for a medical discharge from the police service. Dr Warnock recorded:

"[G]ives a coherent and fluent account of her story. To summarise this, it started during pregnancy approximately five years previously, I think because of issues to do with the pressures on her to assume particular duties during her pregnancy and afterwards.

Following on from this is a long catalogue of woes, the main aspect relating to changes of shifts and demands on her time, disruption of her childcare arrangements and her family life, the fact that at times her husband and her would have only one weekend in twelve together and this might be disrupted by further demands on her time. Changes of location were also relevant with the need to take the daughter out of nursery and a variety of similar issues too numerous to document. A particular issue arose one Christmas when ...[s]he had been expecting to take leave but was phoned with joining instructions for a Christmas drink driving campaign secondment to Traffic".

[27]     
The medical records also included a report by Dr T M Singh, a consultant psychiatrist to whom the respondent had been referred for treatment, dated 11 July 2002:

"When seen in the clinic by my SHO, Dr McTaggart, Mrs McKinlay said that she had been working as a Police Officer for some nine years, and she gave a history of having lost her self-esteem when she was bullied by a male colleague some seven years ago which continued intermittently for two years before she was moved to a different station. The bullying was said to comprise of constant criticism in front of fellow colleagues and prisoners. When Mrs McKinlay became pregnant with her four year old daughter she started to feel increasingly anxious about the effects this would have on her work. She felt that she would be criticised by her colleagues, thereby she stated that she attempted to take on more shifts than others as she thought that they would have no case to criticise her. She ....found it difficult to balance her working and home life as apparently her weekend leave was frequently cancelled when she was asked to do shifts at the last minute. This became a source of her increasing anxiety and stress and she stated that in January 2001 she collapsed at home and as a result was signed off work...

It is my view that Mrs McKinlay is currently suffering from moderately severe depressive anxiety disorder which I would agree with you that it seems closely related to stress at work and her difficulty in reconciling working full-time with motherhood and childcare. Unless her employment situation is resolved, despite the treatment she is receiving with antidepressants and attending psychiatric outpatient clinics, and going to the anxiety management, it is my view that her condition will persist albeit at a different degree".

[28]     
A hearing took place before the medical referee on 6 June 2003. In attendance were the respondent and her husband, Dr Watt, and the solicitors of the petitioners and of the respondent. In relation to the procedure followed, the petitioners' pleadings in the present proceedings (in which the hearing is referred to as "the interview session") are admitted to be accurate:

"The interview session commenced with an introduction of function and process by [the medical referee]. The bulk of the interview session was taken up with an interview of [the respondent] by [the medical referee]. The contents of that interview are recorded by [the medical referee] in his written decision. [The medical referee] also had discussions with Dr Watt regarding his earlier conclusions, Dr Watt maintaining his earlier position. The solicitor for the petitioners then made a brief oral submission in support of earlier written submissions. This was followed by a submission on behalf of [the respondent] by her solicitor".

[29]     
The medical referee recorded the contents of his interview of the respondent, in his decision dated 11 June 2003, as follows:

4.0 Conduct of the Appeal Hearing:

4.1 The first part of the hearing was taken up by the appellant's description of what can reasonably be described as bullying behaviour by a Constable L during 1994 and 1995. The appellant's description was consistent with that recorded by Dr Alex Stewart in his psychiatric report of 12 December [sic] 2002 and with Superintendent Pearson's memo of 12 December 1995 contained within appendix 2 of the police authorities bundle. In addition, the appellant recalled significant anxiety symptoms when going into work when Constable L was on duty 'stomach in knots' (a sense of dread). There is, however, no suggestion that she was suffering from a depressive illness at this time.

4.2 Matters seem to have settled after her transfer to Larkhall in December 1995 and there were no significant difficulties until August 1997 when the appellant was approximately 6 or 7 months pregnant and she suffered an epistaxis (nose bleed) whilst giving evidence in Court. The appellant states that the duty sergeant ordered her to complete her shift despite Mrs McKinlay having expressed (realistic) concerns about hyptertension (high blood pressure) in pregnancy.

4.3 The appellant went on to describe the subsequent difficulties with child care arrangements as outlined in Dr Stewart's report of 12 September 2002 and Dr Singh's report of 11 July 2002.

4.4 Mrs McKinlay described symptoms which suggest that depressive symptomatology was certainly present around April 2000 ..... Mrs McKinlay emphasized that she had been unable to disclose her difficulties to her immediate superiors as she felt that it was unacceptable to admit that she was not coping and that any such admission on her part would merely confirm that she had been the problem all along. She was well aware of adverse comment made about police officers who became pregnant and who made requests for regular shifts etc in connection with child care arrangements.

4.5 Mrs McKinlay told me that by late November/early December 2000 she was having serious difficulties coping with her work and did tell a sergeant in Uddingston of these difficulties. Mrs McKinlay also told me that she had told an Inspector of her difficulty at some point before Christmas; Mrs McKinlay told me that his response was 'you do what we tell you'. Mrs McKinlay also told me that around this time she was subject to further adverse comments passed by friends of Constable L and appears to have suffered from a serious anxiety attack associated with vomiting in February 2001 since when she has not returned to duties.

.......

5.0 Appellant's condition on 20 November 2002 when examined by Dr Watt for the purpose of issuing the certificate of the selected medical practitioner (H1) dated 09 December 2002:

5.1 Mrs McKinlay gave a very clear description of a severe depressive illness with additional physical symptomatology. There were also anxiety-related symptoms including a severe phobic response to police related cues e.g. even seeing a police car or officer at this point would make her panic and feel sick. The sight of a police station or the police helicopter would make her extremely anxious ......

6.0 Appellant's view of her disorder:

6.1 Mrs McKinlay agreed with me that on 20 November 2002 she was suffering from severe depression and anxiety with additional phobic difficulties. She believes that the severity of her symptoms (especially the panic response to police related cues) means that she will never be able to resume work as a police officer.

6.2 Furthermore, Mrs McKinlay believes that she has suffered a work-related injury because of the combined effects of bullying from Constable L and his friends and long-standing lack of consideration by her superiors with respect to basic child care arrangements; Mrs McKinlay made it clear that she had repeatedly described her circumstances to her superiors and felt under a great deal of pressure to pull her weight".

The medical referee's discussion with Dr Watt was recorded as follows:

"7.0 Other Evidence:

7.1 The next stage of the appeal hearing was a review of the statement submitted by Dr A D Watt, selected medical practitioner for Strathclyde Joint Police Board. Dr Watt confirmed that he accepted that at the time he issued form H1 on 20 November 2002 the diagnosis was one of a major depressive illness complicated by features of anxiety and work-related phobias. Dr Watt agreed with me at the time he had issued form H1 the appellant was unfit to return to work as a police officer by reason of her psychiatric disorder.

7.2 Dr Watt confirmed that he disagreed with the opinion expressed in Dr Alex Stewart's report of 12 September 2002 only with regard to the prognosis of her psychiatric disorder; Dr Watt was of the opinion that the appellant's difficulties arose from an 'adjustment disorder' which was reactive (i.e. consequential upon) difficulties in her circumstances (particularly with regard to child care). Dr Watt stated that it was his opinion that there was a likelihood that the appellant's psychiatric disorder would resolve as circumstances improved.

7.3 Dr Watt stated that he had not assessed whether or not Mrs McKinlay's disorder had arisen as a result of work-related injuries because he had not found the appellant to be permanently disabled from performing the ordinary duties of a member of the police force.

7.4 Finally, Dr Watt told me that in his experience it was common for individuals with conditions such as Mrs McKinlay's to eventually recover and return to police duties".

[30]     
The medical referee recorded the submissions made by the petitioners' solicitor as follows:

"8.0 Review of submission by the police authority:

8.1 Mr Blair, for the police authority, described the statutory functions of the Authority. He stated that the Police Authority did not dispute that Mrs McKinlay was ill; rather the Authority disputed the permanence of the illness (with respect to the ability to perform the ordinary duties of a member of the police force). Mr Blair also pointed out that Dr Alex Stewart did not have direct access to the facts surrounding the question of sustained bullying. Mr Blair did not dispute that there had been 'an interchange' between Mrs McKinlay and Constable L. He acknowledged that the contents of the memos of 14 November 1995 and 12 December 1995 contained within appendix 2 of the police authority's submission confirmed that there had been problems arising from the behaviour of Constable L which could be construed as bullying. Furthermore, these memos suggest that Mrs McKinlay (then Constable Garden) was, at the very least, unfairly represented by 2 or more unnamed sergeants (paragraph 6 of the November memo) and necessitating counselling of these sergeants by a superintendent (see paragraph 14 of the December memo).

8.2 With regard to Mrs McKinlay's statement about the insensitivity of her superiors to her child care arrangements, Mr Blair indicated that he had no evidence other than what had been described by Mrs McKinlay at the appeal and in various reports.

8.3 He did not, however, dispute Mrs McKinlay's description of how she had been treated. Mr Blair confirmed that it was the Police Authority's position that there was no proven evidence of injury.

8.4 Finally, Mr Blair did acknowledge that there was a period where there was no contact between Constable McKinlay and the forces occupational health unit due to a period of time where the police occupational health service was 'in disarray'".

The Decision challenged

[31]     
In his written decision, the medical referee summarised the case, and expressed his conclusions, as follows:

"9.0 Summary of case:

9.1 First of all, there is clear and undisputed evidence that the appellant was suffering from a major psychiatric disorder on 20 November 2002 when the selected medical practitioner undertook a medical assessment leading to issuing of form H1 on 09 December 2002. It was not disputed by any party at the Appeal Hearing that this condition had, at the time, disabled the appellant from performing the ordinary duties of a member of the police force. There seemed to be no obvious background factors such as a genetic liability to psychiatric disorder which might readily explain Mrs McKinlay's condition.

9.2 There is no evidence to suggest that Mrs McKinlay has caused or aggravated her condition through the use of illicit drugs or through the misuse of prescription drugs or alcohol.

9.3 Mrs McKinlay does appear to have followed advice regarding medical/psychiatric treatment.

9.4 There is evidence that Mrs McKinlay would be, by virtue of her psychological constitution, relatively vulnerable to bullying. For instance, the junior division student assessment of 24 November 1993 states 'Constable Garden is essentially a private individual whose lack of self projection tends to hamper her effectiveness'. Likewise, the author of the memo of 12 December 1995 contained within appendix 2 mentions in paragraph 16 that Constable Garden is 'by nature quiet and subdued'. Likewise, the appraisal of 18 August 1996 contained within appendix 4 includes the following comment by the appraiser 'her only problems relate to her lack of experience and confidence. This is compounded by her fear of making mistakes or taking wrong course of actions'.

9.5 There is clear evidence of what can reasonably be described as bullying occurring from approximately mid 1994 to mid/late 1995. I believe that the use of the term bullying is appropriate as Mrs McKinlay experienced significant anxiety when going into work (stomach in knots, a sense of dread and being terrified), However, there is no evidence to suggest that at this time Mrs McKinlay was suffering from a persistent anxiety disorder or depression. Rather, in her own words, 'I was just terrified of the man' (Constable L).

9.6 I note that none of Mrs McKinlay's staff appraisals contained within appendix 4 identify any welfare problems other than of September 1997 which mentions that she was due to give birth to her first child in October.

9.7 I could identify no evidence to suggest that Mrs McKinlay experienced a post natal depressive illness following the birth of her child in October 1997. The appellant gave the appeal hearing a clear description of the way in which her personal circumstances with regard to child care were completely ignored despite her repeatedly bringing her circumstances to the attention of more senior officers.

9.8 The veracity of the appellant's statements regarding child care was not disputed by any party at the appeal hearing.

9.9 Finally, Mrs McKinlay gave the appeal hearing a description of her attempting to inform superior officers that she was no longer coping with her job around November/December 2000 and that there were further adverse comments made to her by friends of Constable L. Again, no party present at the hearing disputed the accuracy of these statements.

10.0 Commentary on written evidence submitted for the appeal hearing:

10.1 I was unable to identify any serious inconsistencies between the medical reports, occupational health reports, staff appraisal and various memos with regard to matters of fact (though there are some disputes over dates as highlighted in the response by the police authority to submissions by the appellant); it is my view that these do not impinge upon the appellant's case.

11.0 Commentary on the verbal evidence given to the appeal hearing by Mrs McKinlay:

11.1 I formed the opinion that Mrs McKinlay gave an honest and accurate description of the events under consideration. Again, her oral evidence seemed consistent with that contained within the written submissions to the appeal.

12.0 Opinion

12.1 First, I shall address the matter of permanency. It is my opinion that, on balance of probabilities, Mrs McKinlay is permanently disabled by a medical condition from performing the ordinary duties of a member of the police force. It is my view that the disablement is by reason of a severe phobic anxiety state (ICD code F40.8) arising from and in parallel with a severe depressive illness (ICD code F32.2). The reasoning behind my opinion is as follows:

(a) There is no dispute that on 9 December 2002 the appellant was disabled by a medical condition from performing the ordinary duties of a member of the police force.

(b) There was no dispute that the diagnosis at that time was one of severe phobic anxiety and severe depressive disorder.

(c) It is my opinion that the disorder is permanently disabling with respect to the ordinary duties of a member of the police force because of the duration and intensity of her phobic response to police related cues. Reference to a standard work on affective (i.e. mood) disorders, e.g. the current edition of the Handbook of Affective Disorders (Churchill Livingstone - Edinburgh 1992) will illustrate that the combination of depression and anxiety is associated with a poor treatment outcome e.g. pages 100-101 describe a number of inter-related problems including a range of a research all of which points to the majority of patients with anxiety states having a poor treatment outcome. The same authors also highlight the condition experienced by Mrs McKinlay namely, panic attacks in the context of depression which is again associated with a relatively poor outcome.

(d) Furthermore, reference to 'NHS in Scotland Ill Health Retirement Guidelines' (draft) page 50 lists a number of indicators associated with a poor prognosis (for a return to work) including 1. work related trigger/aggravating factors, 4. prolonged duration, 7. maladaptive avoidance and phobic behaviour, 8. failure response to treatment (sic) and 9. motivational and social issues amongst others. All of these are relevant to Mrs McKinlay and, again, using a balance of probabilities test, lead me to the opinion that she is likely to be permanently disabled from performing the ordinary duties of a member of the police force.

13.0 The second question is in Mrs McKinlay's case is [sic] whether or not her psychiatric disorder has arisen as the result of an injury received in the execution of duty. The oral and written evidence submitted to the appeal hearing leaves me in no doubt that there were definite, sustained and distressing psychological injuries inflicted upon Mrs McKinlay at various points in her police career; the first set of injuries arising from a period of bullying from one or more police officers and a second, more sustained set of stress-related injuries arising from a persisting unwillingness of the police force to recognise Mrs McKinlay's needs with respect to child care from the beginning of 1998 up to her going on permanent sick leave in February 2001. The question I have had to decide is whether or not these injuries have been sufficient in duration or intensity to cause or substantially contribute towards the development of Mrs McKinlay's psychiatric disorder. I have, after careful consideration of the available evidence and using a balance of probabilities test come to the conclusion that the above psychological injuries did indeed substantially cause and then aggravate the appellant's psychiatric disorder.

13.1 It seems reasonable to conclude that these injuries were sustained in the execution of her duty as a police officer.

.......

14.0 Closing Remarks

14.1 It is my opinion that the chain of events can be summarised in terms of Mrs McKinlay being a relatively vulnerable individual by virtue of her relative lack of confidence who is then exposed to a sustained period, of bullying which further undermined her confidence and sowed the seeds of subsequent difficulties including a relative reluctance to acknowledge her distress or difficulties in the context of the staff appraisal system. The final straw for Mrs McKinlay was sustained stress arising from childcare difficulties which were entirely avoidable and arose directly from the police services unwillingness to make allowances for her unusual circumstances (her partner is also a police officer and no other carers appear to have been available). The last minute alteration of shifts/cancellation of leave appears to have been particularly stressful in this setting. The anxiety generated by this stress is likely to have been a major factor in the development of her depression and very probably in the development of her phobic anxiety state.

15.0 In view of the above I have issued a revised certificate relating to part H2 of the Pensions Regulations 1987".

[32] In his certificate, dated 17 June 2003, the medical referee certified that the respondent was disabled from performing the ordinary duties of a member of the police force; that the disablement was likely to be permanent; that the appellant was permanently disabled in respect of the condition of phobic anxiety; and that that condition was the result of an injury received in the execution of duty.

The Parties' Submissions

[33]     
In the present proceedings for judicial review, the petitioners seek declarator that the medical referee erred in reaching his decision, in respect that he acted irrationally, proceeded upon a misunderstanding of the petitioners' position failed to take into account relevant considerations, and failed to act with procedural fairness. They further seek the reduction of his decision, and an order ordaining him to determine the appeal de novo. The submissions made in support of these orders focused upon four matters.

[34]     
First, it was submitted that, at paragraphs 8.3, 9.8 and 9.9 of his decision, the medical referee found a number of matters to be established on the basis that they were "not disputed" by the petitioners. In the context of the procedure adopted, however, there was little or no opportunity for the explicit challenge of assertions made by the respondent at the interview. It was inappropriate to equate silence with agreement. If the medical referee wished to establish that any matters of fact were agreed, and to rely on such an agreement in his decision, then it was incumbent on him to seek confirmation of the parties' positions. He had misunderstood the petitioners' position. It was, for example, clear from the petitioners' written submissions that they disputed the respondent's account of bullying, her alleged difficulties in 1999 and 2000, and her allegation that no contact had been made with her after she became absent from work. All that the petitioners' solicitor had meant, in accepting that certain matters were "not disputed", was that the petitioners were not offering any further evidence beyond what had already been provided, in the expectation that the material already provided would be taken into account. They were not departing from the submissions made previously. The medical referee had however proceeded as if the petitioners' solicitor had done so. He treated the solicitor's failure to dispute the respondent's evidence at the interview as an acceptance of her evidence on all material issues.

[35]     
Secondly, the medical referee failed to act with procedural fairness. The respondent was permitted to give her version of events without any opportunity for cross-examination or challenge on behalf of the petitioners. No opportunity was given to the petitioners to adduce evidence so as to counter or respond to assertions made by the respondent for the first time at the hearing. The medical referee did not suggest that there could be cross-examination or questioning of the respondent. He did not define what the role of the various persons present was to be, or how they were expected to participate in the hearing. He was, literally, a referee. He was adjudicating on a dispute between two parties. He had to deal fairly with both sides. Reference was made to Board of Education v Rice [1911] AC 179, Bushell v Secretary of State for the Environment [1981] AC 75, Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255, R v Board of Visitors of Hull Prison, ex parte St Germain (No.2) [1979] 1 WLR 1401, Mahon v Air New Zealand Ltd [1984] AC 808 and Tait v Central Radio Taxis (Tollcross) Ltd 1989 SLT 217.

[36]      Thirdly, the medical referee failed to recognise that he was presented with conflicting evidence. He failed to recognise that questions of credibility and reliability arose. Such questions were plainly raised by the petitioners' written submissions. The medical referee did not address how he was going to resolve the conflicts in the evidence. He failed to identify inconsistencies between the respondent's allegations at the interview and the allegations she had earlier made to Dr Watt, and between the respondent's allegations and the documentary evidence, let alone to consider the significance of such inconsistencies. He failed to adopt an appropriate procedure to allow credibility to be tested and conflicts between the evidence resolved. Reference was made to Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1AC 551 at pages 568 to 569, and to Grubb v Jones 2003 SLT 1101.

[37]      Fourthly, the medical referee made findings for which there was no basis in the evidence before him. He found that there was a persistent unwillingness on the part of the police force to recognise the respondent's needs in respect of child care from the beginning of 1998. There was no basis for such a conclusion. The respondent did not suggest that she drew her difficulties to the attention of senior officers. The picture presented by her was that she had kept her difficulties to herself and had accepted the way in which duties were allocated. This was consistent with the documentation, which revealed no such reported difficulties until after the respondent had stopped working. The medical referee also found a causal connection between bullying in 1995 and the respondent's condition in 2002, without any apparent basis for such a connection in the evidence.

[38]     
Counsel for the petitioners submitted that these various grounds of complaint were closely related, and all concerned the procedure followed by the medical referee. Counsel summarised the petitioners' complaint as being that the medical referee had not, in the procedure which he adopted, provided for himself a basis which enabled him fairly to resolve the disputed questions of fact. Counsel did not suggest that the medical referee had erred in law in his approach to the question whether the respondent had been disabled as the result of "an injury received in the execution of duty", or in his approach to the question whether the respondent was "permanently" disabled, or in any other respect. I accordingly express no opinion in relation to those matters.

[39]     
In reply, counsel for the respondent submitted that the requirements of fairness depended on the context: relevant factors included the nature of the enquiry, the subject-matter of the decision, its potential effects, and any express rules governing the procedure. A hearing before a medical referee was essentially informal. It was not like a hearing in court. Witnesses were not placed on oath. Their evidence was not led by competing parties. The medical referee was appointed specifically because he was a consultant psychiatrist. The questions for his decision lay within his specialist expertise. He explained at the outset of the hearing the procedure which he intended to follow. No objection was taken. No application was made to cross-examine the respondent. No request was made for any enquiry into disputed matters of fact by other means. The petitioners had acquiesced in the procedure adopted. Reference was made to Lloyd v McMahon [1987] AC 625 and R v Army Board of the Defence Council, ex parte Anderson [1992] QB 169.

[40]      It was accepted that, in a situation where a disputed question of fact was central to a medical referee's decision (e.g. whether a disabling accident had occurred when the officer was on duty or when he was at home), it might be necessary to allow witnesses to be questioned and cross-examined. Where peripheral matters of fact were in dispute, on the other hand, it might be within the discretion of the medical referee to take a view on the basis of the competing accounts contained in documents. What was peripheral could be a matter for the judgment of the medical referee. In the present case, in particular, there were only two material areas of disputed fact. The first was whether or not bullying had taken place. The medical referee had been entitled to find as he did in relation to that matter, because it was conceded by the petitioners' solicitor that bullying had taken place. That had been a departure from the petitioners' written submissions. The second matter concerned child care. In relation to that matter, the petitioners put forward no evidence at the hearing to contradict the respondent's account. Their solicitor indicated that he did not dispute the respondent's account. The medical referee accepted that the respondent was credible in her account. In so far as any matters of fact remained unclear, they were of peripheral importance, and were not central to the medical referee's decision. The medical referee had not ignored the material produced by the petitioners, but he had treated it (insofar as it was inconsistent with the respondent's account) as being peripheral to the main issue.

[41]     
Counsel for the respondent further submitted that the petitioners had delayed unreasonably in challenging the medical referee's decision. The decision was dated 11 June 2003. By 7 August 2003 the petitioners had indicated to the respondent's solicitor that it might be their intention to commence proceedings for judicial review. The respondent's solicitor decided not to seek enforcement of the medical referee's decision, because it was thought that judicial review proceedings were imminent. By letter dated 12 September 2003 the petitioners informed the respondent's solicitor:

"... the Board intends to proceed to judicial review of the medical referee's decision in this case, and has now commenced the relevant process".

Following a telephone conversation with the petitioners' solicitor on 17 November 2003, the respondent's solicitor understood that an application for judicial review was to be made in the very near future, and so informed the respondent. Following a further such conversation on 12 December 2003, the respondent's solicitor understood that proceedings were imminent, and so informed the respondent. The petition was lodged on 21 January 2004. A first order was granted on 23 January 2004. The petitioners purported to serve the petition on the respondent on 29 January 2004, but the service was inept as a first hearing had not then been fixed. The petition was finally served on 19 February 2004, more than eight months after the date of the decision in dispute. The respondent's health had been affected by the delay. Reference was made in that connection to a report by Dr Stewart dated 7 April 2004, stating that the respondent's ability to cope with her depression had been further undermined by the action of the petitioners "in seeking a judicial review and the long delay before the date for that was set". Dr Stewart concluded:

"[T]he action of [the petitioners] in seeking judicial review is undermining her recovery from her major depressive disorder and is putting her life further at risk as a consequence".

Reference was also made to a letter to the respondent's solicitor dated 4 May 2004 from another consultant psychiatrist, Dr Fiona Morrison, in which the respondent was said to be suffering from a specific phobia related to Strathclyde Police, which Dr Morrison attributed "entirely" to "the delay in bringing about the review". Counsel also observed that the petitioners were not paying any pension to the respondent, although he accepted that the respondent's solicitor had elected not to take proceedings for the enforcement of the medical referee's decision. The petition should accordingly be refused on the basis that the petitioners were barred by mora, taciturnity and acquiescence from insisting in any challenge to the decision. Reference was made to Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738, Fife Regional Council v Scottish Legal Aid Board 1994 SLT 96 and Kwik Save Stores Ltd v Secretary of State for Scotland 1999 SLT 192.

[42]      Responding in relation to the issue of delay, counsel for the petitioners said that the medical referee's decision dated 11 June 2003 had been sent by him to the Scottish Public Pensions Agency, an executive agency forming part of the Scottish Executive. It was not received by the petitioners until July 2003. The petitioners had then considered carefully whether to bring the present proceedings. That had involved a report to the petitioners by their solicitors, the consideration by the petitioners of a draft petition, and the subsequent consideration of suggested revisals. The delay in the commencement of proceedings was not material to the real cause of the respondent's anxiety, which was her uncertainty over her early retirement on an enhanced pension. She had herself initiated the process of seeking such retirement. The bringing of judicial review proceedings, after the time required to consider the medical referee's decision and to prepare and finalise the necessary petition, was a predictable part of that process. Any deterioration in the respondent's health had not been drawn to the attention of the petitioners. Dr Stewart was retained by the Scottish Police Federation. His report was based on an uncritical acceptance of the respondent's complaints. For what it was worth, it appeared to be concerned with the bringing of the judicial review proceedings and the length of those proceedings, rather than specifically with any delay in the commencement of the proceedings. Reference was made to Uprichard v Fife Council 2000 SCLR 949 and Noble v City of Glasgow Council 2001 SLT 2.

Discussion

[43]     
It is clear that the question whether the requirements of fairness have been met by the procedure adopted in any given case must depend to a great extent on its facts and circumstances. In Ceylon University v Fernando [1960] 1 WLR 223, Lord Jenkins in delivering the advice of the Privy Council enlarged on this point by quoting (at page 231) the dictum of Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at page 118:

"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth".

Similar observations have been made in other cases (e.g. by Lord Bridge of Harwich in Lloyd v McMahon at page 702). In that connection, I would observe that several of the authorities cited in the present proceedings were concerned with tribunals of a very different character from a medical referee appointed under the 1987 Regulations, and that some of the dicta cited from those authorities accordingly appear to me to be of no relevance to the circumstances of this case.

[44]     
In the present case, the starting point is the relevant provisions of the 1987 Regulations, notably in Part H and Schedule H. Regulation H1(1) lays down the general requirement that the question whether a person is entitled to any and, if so, what awards under the Regulations is to be determined in the first instance by the police authority. Where, however, as in the present case, the police authority are considering whether a person is permanently disabled, and whether to grant an injury pension, they are required by regulation H1(2) to refer for decision to a medical practitioner the questions (a) whether the person concerned is disabled, (b) whether the disablement is likely to be permanent, (c) whether the disablement is the result of an injury received in the execution of duty, and (d) as to the degree of the person's disablement. The medical practitioner exercises no adjudicatory function, for there is at that stage no other person between whose contentions and those of the claimant he is required to adjudicate. He must form his own opinion as to the questions referred to him, and for that purpose he may make whatever enquiries he thinks fit. His decision on the questions referred to him is expressed in the form of a certificate; and the person concerned (but not the police authority) has a right of appeal against the decision. The appeal is then decided by an independent person, referred to in the Regulations as the "medical referee", appointed by the Scottish Ministers. It appears (in particular, from regulations H1(1), H2 and H5(1)) that the medical referee does not himself determine claims to an award. Such determinations are made by the police authority. The role of the medical referee is thus to decide any appeal which may be taken by the officer concerned against the decision of the medical practitioner of particular questions which have arisen in the course of the police authority's consideration of the officer's claim, and which they have referred to the medical practitioner. If he disagrees with the decision of the medical practitioner, he has to decide the questions himself.

[45]     
In dealing with an appeal of this kind, the medical referee can be described as exercising an adjudicatory function, for at this stage he may have conflicting contentions before him: this is reflected in paragraph 4 of Schedule H, which permits the appellant and the police authority to submit statements relating to the subject matter of the appeal. But there is a distinction between the functions of the medical referee and those of a judge or arbiter. The question whether a police officer is entitled to an award under the Regulations (and, if so, as to the amount of the award) is not truly analogous to a lis inter partes. Paragraphs 4 and 5 of Schedule H refer to the appellant and the police authority as the two "parties" to the appeal, and indicate that each of them is entitled to submit a statement and to appoint a medical practitioner to attend any interview or examination; and paragraph 8 indicates that each party may receive a decision in his favour. Nevertheless, the police authority is not a "party" in the same sense as a party to litigation. A number of aspects of the Regulations reflect the fact that the appeal to the medical referee forms a stage in the procedure by which a determination is made by the policy authority. If, for example, the appeal is refused, the police authority has the power of deciding whether, and to what extent, the appellant should pay towards the cost of the appeal (paragraph 8(2) of Schedule H). Furthermore, the police authority cannot initiate any proceedings under the Regulations in order to challenge the medical referee's decision, whereas the officer concerned can appeal against the determination of the police authority giving effect to that decision, in which event the medical referee can be required to reconsider his decision if it appears that the evidence before him was inaccurate or inadequate. Moreover, the outcome of the appeal to the medical referee may not be decisive of the officer's claim to an award, and there may remain a substantive decision to be taken by the police authority (for example, as to whether the officer received the relevant injury "without his own default": regulation B4(1)).

[46]     
In addition to these differences between the positions of the appellant and the police authority on the one hand, and those of the parties to litigation on the other hand, there are also differences between the role of the medical referee and that of a judge. It is apparent from the Regulations that the medical referee is carrying out an investigation, rather than simply trying an issue between the appellant and the police authority. Neither the appellant nor the police authority is required to submit any statement to the medical referee. 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, as has been mentioned, that they may each appoint a medical practitioner to "attend" any such interview or examination. The provision for the attendance of medical practitioners indicates that the interview and examination are envisaged as being of a medical character. The provision as to expenses in paragraph 8(3) of Schedule H (to the effect that a successful appellant will be reimbursed expenses incurred in respect of any such interview or examination as is mentioned in paragraph 3) is a further indication that the appellant is not expected to be involved in any procedure beyond such an interview or examination.

[47]     
I note that paragraph 3 of Schedule H appears, on one view at least, to envisage that the medical referee will interview only the appellant ("a time and place for interviewing the appellant and for any such further interviews or examinations": emphasis added). It was not however suggested by either party to the present proceedings that the medical referee's powers were so restricted. In the circumstances, I shall not discuss that point further, beyond noting that it was not raised in these proceedings.

[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.

[49]     
The nature of the issues which the medical referee has to determine will vary from case to case. As I explained in Lothian and Borders Police Board v MacDonald 2004 SLT 1295, they are not necessarily confined to issues of a medical nature:

"[54] One further aspect of the history of the legislation has been the apparent widening of the scope of the questions which must be determined by a medical practitioner and, on appeal, by a medical referee. In particular, as explained above, the 1948 Regulations [the Police Pensions Regulations 1948, SI 1948 No 1531 and the Police Pensions (Scotland) Regulations 1948, SI 1948 No 1530] introduced the requirement (repeated in the 1987 Regulations) that the question whether the disablement is the result of an injury received in the execution of duty should be decided by a medical practitioner and, on appeal, by a medical referee. As was mentioned above, this question may involve issues which cannot be determined on medical grounds, or by means of a medical examination of the officer. It may in some cases require the resolution of disputed issues of fact which are not of a medical nature: for example, whether an officer is telling the truth when he claims that his back injury was sustained when lifting an object while on duty, or whether it was in fact sustained when he was moving furniture at home; or whether the journey during which the officer was injured was one which was necessary to enable him to report for duty or return home after duty; or whether the reason why he was assaulted when off duty was because he was known to be a police officer, or because he had a disagreement with the assailant. In other cases, the issues requiring to be determined under regulation H1(2)(c) may include a question of law: for example, whether disablement caused by psychiatric problems arising from the officer's lack of promotion prospects is the result of 'an injury received in the execution of duty' within the meaning of the Regulations. If the Regulations are read literally, the Sheriff Court on an appeal under regulation H5 appears indeed to be bound by the decision of the medical referee on such a question of law. It was in the light of such considerations that Latham J observed in relation to the 1987 Regulations, in R v Merseyside Police Authority, Ex parte Yates (unreported), 19 February 1999:

'There is no doubt that the scheme of Part H of the regulations, read literally, appears to abdicate to the medical practitioner responsibility for deciding issues in relation to which he is not necessarily appropriately qualified.'

Nevertheless, the view was taken in Ex parte Yates and in Clinch v Dorset Police Authority [2003] EWHC Admin 161 that the literal reading was unavoidable, notwithstanding what were acknowledged to be its unsatisfactory consequences. That approach was not questioned in the submissions in the present case.

[55]      I note that one apparent implication of that approach is that Schedule H cannot be regarded as an exhaustive description of the procedure to be followed, since it provides only for the submission of statements, an interview of the officer and, possibly, an examination; and that procedure would not necessarily enable non-medical issues to be determined. One implication of the literal reading of the Regulations would therefore appear to be that the medical referee is not necessarily confined to following the procedure described in Schedule H".

What I referred to in that passage as the literal reading of the Regulations was not questioned in the submissions in the present case.

[50]     
It appears therefore that, at a general level, the issues arising on an appeal under regulation H2(2) will include questions of medical diagnosis and prognosis, but may also include questions of fact of a non-medical nature, and questions of law. In the present case, the critical questions which the medical referee had to determine were whether the respondent's admitted disablement was the result of an injury received in the execution of duty, and 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 respondent's symptoms and history, so as to identify the "injury" which she had suffered; in part, upon the correct inference to be drawn as to the aetiology of her condition, in the light of medical knowledge as to the aetiology of such injuries and factual knowledge of the respondent's history, so as to determine whether the injury had been "received in the execution of duty"; and in part, upon an accurate understanding of the meaning of the question (e.g. as to the meaning of the words "received in the execution of duty", and as to the appropriate test of causation). The decision on the second question depended in part upon the correct prognostic inference to be drawn, in the light of knowledge of the progress of conditions of this kind, and in part upon an accurate understanding of the meaning of the question (e.g. as to the meaning of the word "permanent"). Leaving aside the medical referee's understanding of the meaning of the questions, as to which no issue has been taken in these proceedings, his decision thus depended essentially upon establishing the respondent's symptoms, establishing her history and applying expert medical knowledge in order to arrive at an opinion as to diagnosis, aetiology and prognosis. Taking a history from a patient is of course a routine aspect of medical practice, in which medical practitioners receive training and acquire experience, but it does not itself depend on expert medical knowledge; and it was the respondent's true history (in particular, whether she had been treated by other officers as she claimed) which was the main point of contention in the statements submitted to the medical referee.

[51]     
As I observed in Lothian and Borders Police Board v MacDonald, the procedure described in the Regulations may not be adequate in itself to enable the medical referee to determine non-medical issues. If a non-medical issue of fact has to be determined, the medical referee has to have access to information bearing on that fact. Adequate information may or may not be obtainable by interviewing the appellant, depending on the circumstances; but it would be surprising if the medical referee were confined to the appellant as a source of information, where the veracity or reliability of the appellant's account was in issue. Equally, if an issue of law has to be determined, the medical referee has to have access to information as to the law. These matters are recognised in practice: in the present case, as in Lothian and Borders Police Board v MacDonald, the medical referee received documentary evidence relating to the facts in dispute, and also received legal submissions in writing. In the present case, the medical referee also permitted the parties to make oral representations following his interview of the respondent and Dr Watt, in what was effectively an oral hearing. He was not required to do so by the Regulations, but it is accepted in these proceedings that he was entitled to do so as a matter within his discretion.

[52]     
Insofar as the Regulations are to be construed as implicitly permitting the medical referee to adopt procedures which are not laid down in the Regulations themselves, the medical referee must be regarded as being, to that extent, the master of his own procedure, subject to the requirement to act fairly. During the course of the discussion reference was made to the well known remarks of Lord Loreburn LC in Board of Education v Rice at page 192, where he observed of the Board:

"[T]hey must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view".

As that passage indicates, to the extent that a tribunal is the master of its own procedure, it can in principle obtain information in any way it thinks best: it may, for example, hear witnesses orally, or it may receive written statements from the parties.

[53]     
The words of Lord Loreburn LC have been applied in a wide variety of contexts, but do not offer a complete guide to procedure before administrative tribunals and inquiries. Everything depends on the context. In the context of the 1987 Regulations, given the apparent intention that the medical referee should be medically qualified and should rely on his own medical knowledge, and the absence of any provision for legal representation or the examination of witnesses, it would be inappropriate to introduce into the procedure the formality and rigidity appropriate to an issue to be decided by a judge, or to insist on the observance of procedures which only professional lawyers, or other persons who had received appropriate training in such procedures, would be competent to operate. Informality is not incompatible with fairness; and it appears to me that the procedure can properly be as informal as is consistent with its achieving its objectives: in particular, that the medical referee should ascertain the facts that are relevant to his deciding the questions before him, and should understand any material points of law. In particular, I see no reason why, as a matter of generality, the only fair way for the medical referee to ascertain matters of fact should be by the oral testimony of witnesses who are subjected to cross-examination. As Lord Diplock observed in Bushell v Secretary of State for the Environment (at page 97), such procedure is peculiar to litigation conducted in courts which follow the common law system of procedure, and even in those courts is not the invariable rule. It could therefore only be for reasons arising out of particular circumstances that a failure by a medical referee to permit cross-examination could possibly be regarded as unfair.

[54]     
The principles of fairness which are germane to these proceedings can in my view be reduced to the two that were referred to by Diplock LJ (in a judgment to which the present discussion is indebted) in R v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 QB 456, 488-490, and by the Privy Council (in a judgment delivered by Lord Diplock) in Mahon v Air New Zealand Ltd at page 820: cases dealing with the exercise of different forms of investigative jurisdiction. First, the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value. Secondly, he must give fair consideration to any contentions or other relevant material submitted by the parties to the proceedings. I cannot see any breach of those principles in the present case.

[55]     
Considering first the submission that the medical referee acted unfairly, in treating matters which were said to be "not disputed" as being accepted, the petitioners' argument appears to me to be untenable. As a matter of ordinary English, to say that something is not disputed means that it is not in dispute, and is therefore accepted. Even if it be the case, as the petitioners contend, that all that their solicitor meant, in saying that certain matters were "not disputed", was that the petitioners were not offering further evidence, the medical referee did not act unfairly in giving the words their natural meaning.

[56]     
The criticism of the medical referee for failing to invite cross-examination of the respondent appears to me to be equally unpersuasive. As I have explained, under reference to Board of Education v Rice and Bushell v Secretary of State for the Environment, there is no general obligation on a medical referee to allow cross-examination. The fact that the credibility of evidence may be in issue, or that there may be material conflicts within the evidence, do not of themselves entail that cross-examination is, in such a context, either essential or appropriate. The fact that the respondent's account was not subject to cross-examination went to the weight of that material only. Equally, if she gave an account when interviewed which was different from accounts which she had given on an earlier occasion, that also went only to weight. No application was in any event made to cross-examine: on the contrary, the petitioners' solicitor indicated that it was not in dispute that there had been an "interchange" between the respondent and Constable L, that it was acknowledged that the contemporary documents confirmed that there had been problems arising from the behaviour of Constable L which could be construed as bullying, and that the respondent's evidence relating to her treatment in respect of childcare was not disputed. In these circumstances, the proposition that it was unfair of the medical referee not to invite cross-examination is untenable.

[57]     
The submission that the medical referee unfairly gave the petitioners no opportunity to adduce evidence to counter assertions made by the respondent for the first time at the hearing must similarly be rejected. The medical referee was addressed on behalf of the petitioners after the respondent had been interviewed. Their solicitor had an opportunity to make whatever submissions or representations he considered appropriate. He did not seek an opportunity to adduce further evidence. On the contrary, as I have mentioned, his submissions implied that the main points of the respondent's evidence about her treatment were not seriously disputed.

[58]     
The criticism of the medical referee for allegedly failing to recognise that questions of credibility and reliability arose, and for failing to identify and consider inconsistencies in the evidence, was presented as an issue of procedural fairness: that the medical referee had failed to adopt an appropriate procedure to enable such matters to be resolved. The medical referee stated (at paragraph 10.1 of his decision) that he was unable to identify any "serious" inconsistencies within the written evidence: he recognised that there were some disputed matters, but it was his view that "these do not impinge upon the [respondent's] case". That was a conclusion on an issue of fact falling within the jurisdiction of the medical referee, and reflecting his assessment of the matters which were germane to his decision. This court's jurisdiction in respect of his decision is not appellate but supervisory. It cannot set aside his decision on the basis that he has erred in his assessment of the facts, since its supervisory jurisdiction does not entitle it to usurp the responsibility for the assessment of the facts which the legislation has entrusted to the medical referee. If it could be said that the medical referee had failed to have regard to material considerations, then his decision would be open to challenge on the ground of unreasonableness; but no such argument was presented. As a matter of fairness, there is in principle nothing objectionable about an investigative procedure, in a context such as that of an appeal to the medical referee, under which some evidence is taken in oral form and other evidence in documentary form, even though there are conflicts and inconsistencies. It is for the medical referee to determine whether the inconsistencies are critical to his decision and, if so, how best to resolve them. He is not constrained to resort to the methods of a court in order to do so. In the present case, in any event, he was not invited to adopt any different procedure; he was informed that the aspects of the respondent's account which he regarded as critical were either not disputed (in the case of her account of her treatment as regards child care), or were acknowledged to gain support from the petitioners' records (in the case of her account of bullying), and he formed the opinion (as he recorded at paragraph 11.1 of his decision) that the respondent "gave an honest and accurate description of the events under consideration".

[59]     
The final criticism is that the medical referee made two findings for which there was no basis in the evidence. The first of these findings appears in paragraph 13.0 of the medical referee's decision, where he finds that the respondent sustained stress-related injuries arising from "a persisting unwillingness of the police force to recognise [her] needs with respect to child care from the beginning of 1998 up to her going on permanent sick leave in February 2001". That finding reflected the account given by the respondent, as narrated at paragraphs 4.3, 4.5, 6.2, 9.7 and 9.9 of the decision, and as previously narrated to Dr Stewart and Dr Singh (whose reports were referred to in paragraph 4.3). The position of the petitioners was summarised by the medical referee at paragraphs 8.2, 8.3, 9.8 and 9.9: put shortly, they did not dispute the respondent's description of how she had been treated. In these circumstances, it appears to me to be plain that there was evidence before the medical referee which was capable of supporting the finding recorded in paragraph 13.0. The weight to be attached to that evidence, and any inferences to be drawn from it as a matter of expert medical opinion, were matters for the medical referee.

[60]     
The second finding for which there was said to be no basis in the evidence was a finding that there was a causal connection between the bullying in 1995 and the respondent's condition in 2002. Having eliminated (at paragraph 9.1) background factors which might explain the respondent's condition, such as a genetic liability to psychiatric disorder, and having ruled out (at paragraph 9.2) other possible factors such as the abuse of drugs or alcohol, the medical referee noted (at paragraph 9.4) that there was evidence indicating that the respondent's psychological constitution would be relatively vulnerable to bullying. He then noted (at paragraph 9.5) that there was clear evidence that bullying had occurred during 1994 and 1995, and had caused the respondent to experience significant anxiety, although not a persistent disorder. In paragraph 13.0, he stated that there was no doubt that the respondent had suffered two sets of psychological injuries, the first set arising from the bullying, and the second set arising from the unwillingness of the police force to recognise the respondent's needs with respect to child care. He then identified the question he had to decide as being whether those injuries had caused or substantially contributed to the development of the respondent's psychiatric disorder. He answered that question in the affirmative. He summarised his analysis of events in paragraph 14.1:

"14.1 It is my opinion that the chain of events can be summarised in terms of Mrs McKinlay being a relatively vulnerable individual by virtue of her relative lack of confidence who is then exposed to a substantial period of bullying which further undermined her confidence and sowed the seeds of subsequent difficulties including a relative reluctance to acknowledge her distress or difficulties in the context of the staff appraisal system. The final straw for Mrs McKinlay was sustained stress arising from childcare difficulties .... The anxiety generated by this stress is likely to have been a major factor in the development of her depression and very probably in the development of her phobic anxiety state".

[61]     
As was mentioned above, no suggestion has been made in these proceedings that the medical referee erred in law in his approach to the question whether the respondent had been disabled as the result of "an injury received in the execution of duty" (including his approach to the question of causation), and I accordingly express no opinion on that matter. The criticism that there was no basis in the evidence for his finding that there was a causal connection between the bullying and the respondent's psychiatric disorder appears to me to be ill-founded. The medical referee's conclusion appears to have been that the bullying formed a material part of the chain of events which led to the development of the psychiatric disorder: it affected her mentally so as to render her vulnerable to the development of that disorder when subjected, some years later, to the stress arising from childcare difficulties, the latter stress constituting the "final straw". The conclusion that the bullying played that role in the aetiology of the disorder did not require to be the subject of evidence before the medical referee, in the way in which a similar conclusion would require to be the subject of evidence in proceedings before a judge. As I have explained, the medical referee had to draw an inference as to the aetiology of the respondent's condition, in the light of medical knowledge of the aetiology of such conditions and factual knowledge of the respondent's history. In doing so, he was entitled to apply his own expert medical knowledge, so as to infer that there was a causal connection between the bullying (of which there was evidence) and the respondent's condition (which was not in dispute).

[62]     
There accordingly appears to me to be no substance in any of the petitioners' criticisms of the medical referee's decision. In those circumstances, it is unnecessary for me to consider in detail the respondent's plea of mora, and it would be inappropriate for me to embark upon an elaborate discussion of that topic. All I need say is that I would not have been inclined to sustain the plea: the petitioners made clear within about two months of receiving the decision their intention to apply for judicial review, and although a further five months elapsed before a petition was competently served, it is not apparent that the respondent has suffered material and ascertainable prejudice attributable specifically to that delay.

[63]     
In the whole circumstances, the petition will be refused.


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