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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> London Fire and Emergency Planning Authority, R (on the application of) v Board of Medical Referees [2012] EWHC 3828 (Admin) (29 November 2012) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2012/3828.html Cite as: [2012] EWHC 3828 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE
COURT
Strand London WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF LONDON FIRE AND EMERGENCY PLANNING AUTHORITY | Claimant | |
v | ||
BOARD OF MEDICAL REFEREES | Defendant |
____________________
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(Official Shorthand Writers to the Court)
The Defendant was not present and was not represented
Mr M Seaward appeared on behalf of the Interested Party
____________________
Crown Copyright ©
The Legal Framework.
Relevant rules of the FPS include the following:
A10(1) references in this scheme to a person being permanently disabled are references to his being disabled at the time when a question arises for decision and to his disablement being at that time likely to be permanent.
(1)(a) In determining whether a disablement is permanent, a Fire and Rescue Authority should have regard to whether the disablement will continue until the person's normal pension age.
(2) Disablement means incapacity occasioned by infirmity of mind and body for the performance of duty except that in relation to a child it means incapacity so occasioned to earn a living.
A13 The normal pension age of employers of a Fire and Rescue Authority appointed on terms under which they are or may be required to engage in firefighting is 55.
A15.1(1) Subject to paragraph 2, a regular firefighter may be required by the Fire and Rescue Authority to retire on the date on which the Authority determined that he ought to retire on the ground that he is permanently disabled.
(2) A retirement under this rule is void if, on appeal against the medical opinion on which the Fire and Rescue Authority acted in determining that he ought to retire, the Board of Medical Referees appointed under part 1 of schedule 9 decides that the appellant is not permanently disabled.
H1 (1) The question whether a person is entitled to any and if so what award should be determined in the first instance by the Fire and Rescue Authority.
(2) Subject to paragraph (3) before deciding for the purposes of determining that question or any other question arising under this scheme -
(a) Whether a person has been disabled,
(b) Whether any disablement is likely to be permanent
...
(e) Whether a person has become capable of performing the duties of a regular firefighter, or
(f) Any other issue wholly or partly of a medical nature,
the Authority shall obtain the written opinion of an independent qualified medical practitioner selected by them and the opinion of the independent qualified medical practitioner shall be binding on the Authority.
H2 (1) where -
(a) An opinion of the kind mentioned in rule H1(2) has been obtained and
(b) Within 14 days of his being notified by the Fire and Rescue Authority's decision on the issue, the person concerned applies to them for a copy of the opinion
the Authority shall supply him with a copy together with a statement informing the person concerned that if he wishes to appeal against the opinion he must give the Authority written notice of his grounds of appeal together with his name and address within 14 days of the date on which he is so supplied.
(2) If the person concerned is dissatisfied with the opinion which has been supplied to him under paragraph 1 he may appeal against it by giving notice to the Fire and Rescue Authority in accordance with paragraph 1 of part 2 of schedule 9.
(3) A Fire and Rescue Authority shall be bound by any decision on any issue referred to in subparagraphs (a) to (f) of rule H1(2) duly given on appeal under this rule.
2(1) On receiving a notice of appeal, the Fire and Rescue Authority shall supply the Secretary of State with two copies of the notice and two copies of the opinion.
(2) The Secretary of State shall refer an appeal to a Board of Medical Referees ("the Board") and shall supply them with a copy of the notice and a copy of the opinion.
2A(1) The Board shall consist of not less than three medical practitioners appointed by or in accordance with arrangements made by the Secretary of State.
(2) One member of the Board shall be a specialist in a medical condition relevant to the appeal.
(3) One member of the Board shall be appointed as chairman.
(4) Where there is an equality of voting amongst the Members of the Board, the Chairman shall have a second or casting vote.
4(1) Subject to subparagraph (4) the Board -
(a) shall interview and medically examine the appellant at least once and
(b) may interview or medically examine him or cause him to be interviewed or medically examined on such further occasions as the Board thinks necessary for the purpose of deciding the appeal.
6. The Board shall supply the Secretary of State with a written report of its decision on the relevant medical issues and the Secretary of State shall supply a copy of the report to the appellant and to the Fire and Rescue Authority.
"This circular covers the details of the new contract for the Managing Boards of Medical Referees entered by CLG with Health Management Limited; the procedures for processing appeal cases; and the revision of forms as necessary in support of this.
...
4.2. The members of the Board are all medical practitioners and HML are contracted to provide Boards with the following qualifications:
Chairperson: a consultant physician who is a Fellow or member of the Faculty of Occupational Medicine.
Second member: a consultant physician who is at least an associate of the Faculty of Occupational Medicine and
Third member: a consultant physician who is a specialist in the medical condition relevant to the appeal.
In some cases, it may be necessary to appoint two specialists to the Board."
"[115]...Grounds of appeal within a strictly limited period (which there is no power to extend) are vital. What is the purpose of these grounds of appeal? In my judgment, to put before the Board an issue within rule H1(2) the appeal question is a reflection of this...
[116] The appeal can be instigated only by the fireman. The authority has no right to appeal against the IQMP's decision. On the contrary, it is bound by it ("shall be binding on that higher authority" rule H1(2)). The rules do not say that if the fireman appeals to the Board the opinion ceases to bind the Authority to be replaced by whatever decision the Board renders. Plainly the IQMP's opinion continues to bind the Authority subject to being overridden by any decision by the Board on one of the issues referred to in rule H1(2). Thus rule H2(3) states:
"A Fire Authority shall be bound by any decision on any issue referred to in subparagraphs (a) to (f) of rule H1(2) duly given on an appeal under this rule."
Moreover, paragraph 6 of schedule 9 refers to the Board's "written report of its decision on the relevant medical issues" thus what is given by an IQMP? An opinion on an H1(2) issue or issues. What is decided by a Fire Authority? The Authority decides the same issue or issues being bound by the IQMP's opinion. What may be appealed? Any one or more of the same issues. What is decided upon appeal? The issue or issues appealed.
[117] If on the contrary any ground of appeal by a fireman were to put all possible issues before the Board, there would be little point in limiting the right of appeal to the fireman or in demanding notice of his grounds. There would simply be a general review by the Board...
[118] It is said that the medical examination on appeal shows that every issue is open for re-investigation but it does not follow. As happens regularly in the courts, what is in issue depends on the grounds of appeal. The appeal court takes what is not challenged as given as data. There is no reason why the same should not apply to the schemes appealed to a Board. This is emphasised in the context of the Board's power of interview and examination by para 4(1)(b) of schedule 9 which says that further interview and examination are possible "on such further occasions as the Board thinks necessary for the purpose of deciding the appeal." (Emphasis added). Thus the power of interview and examination and it is obligatory to interview and examine at least once, see paragraph 4(1)(a) is provided for the purpose of appeal but that is defined by the appellant's grounds...
[119] It is granted that there is some artificiality in a Board which may take the view that the appellant fireman is suffering no disability whatsoever nevertheless being unable to impose its assessment to that effect on the Authority.
..."
"The correct construction of Part H in Schedule 9 is that an appeal is from the opinion of the IQMP on an issue within rule H1(2). It is not within the jurisdiction of the Board to give a binding decision which trespasses on issues which are not subject to a fireman's appeal. That is part of the ratio of my judgment..."
"It was a report produced by doctors and should not apply the standards that one would expect from a reasoned decision of the court.": see paragraph 27.
At paragraph 38 he expanded on this point further saying:
"The decision in Stephan's case makes it clear that the extent and substance of the reasons required depends upon the circumstances. Reasons need not be elaborate or lengthy but they should be such as to tell parties in broad terms why the decision was reached."
At paragraph 40 he referred to the judgment of Dyson LJ:
"...it is important that a tribunal should state which evidence if any it accepts and which it rejects, giving reasons."
Factual Background
"Evidence indicates that treatment is likely to result in his health being restored."
Mr Coogan appealed to the Board against the opinion of the IQMP that he was not likely to be permanently disabled. The Board was originally going to be chaired by Dr Sheard, an occupational health physician. His colleagues were to be Dr Weddell, another occupational health physician and Dr Ibrahim, who is a psychiatrist. There is some evidence that he was selected for his expertise in sleep apnoea but detailed information about his qualifications and expertise is lacking. In the event an adjournment meant that the constitution changed. When the Board finally met, Dr Leeming-Latham, an occupational health physician, was the Chairman. His colleagues were Dr Groom, another occupational health physician and Professor Adrian Williams, whose primary expertise is in the field of sleep apnoea.
"Paragraph 1.1. Mr Coogan was found not to be permanently incapacitated by an independent qualified medical assessor [IQMP] - there is no date on the actual report.
1.2. Mr Coogan is suffering from a depressive illness for eight years and has been diagnosed with severe depressive episode without psychotic features and with elements of post-traumatic stress disorder."
He referred to sleep apnoea at internal pages 20 to 22 of the submissions and concluded:
"Mr Coogan has got sleep problems due to his depressive state and anxiety and the elements of post-traumatic stress disorder, not sleep apnoea."
He then made written submissions under the heading "Severe depressive episode without psychotic features", which is an express categorisation under ICD-10, referring in passing to the opinion of Dr Master that:
"7.3. He is suffering from a clinical depression of moderate severity. I think that Mr Coogan's depressive illness was precipitated by a hostile attitude of his work colleagues on his return to work.
...
7.6. In his current state, Mr Coogan is unfit to work because of his depressive illness. The prognosis is uncertain at this stage. His illness has become chronic and the symptoms are of moderate severity. Those are poor prognostic factors. I suggest that his psychiatric condition should be reviewed when his CBT treatment has ended."
At internal page 30 of the submissions, Mr McVeigh identified the key issues as being:
"5.1. The LFEPA/IQMP do not accept that Mr Coogan is permanently disabled due to his infirmity.
5.2. Mr Coogan believes that he is permanently disabled and he believes that his consistent approach to try and get better by the amount of treatment he was willing to pay for can attest to this.
..."
"Adjustment disorder with prolonged depressive reaction (F43.21)."
And that Dr Lockhart stated in his summary at page 971 of the bundle:
"In my opinion Mr Coogan is suffering from a severe depressive episode without psychotic features. This disorder is directly related to his experiences in the workplace as noted above and well-documented in other reports and would not have occurred had these events not taken place."
"Opinion. The medical records available indicate that the appellant had been well-adjusted and fit prior to December 2002 when he developed what has been repeatedly confirmed to be depression and which has been subject to all usual treatments to no avail. A number of neurological assessments during this time have not revealed any meaningful physical diagnosis, which is supported by the current interview and examination. The reported obstructive sleep apnoea was not firmly diagnosed and the common symptoms associated with this condition are not currently present, perhaps as a result of a septoplasty, improving his nasal airway. An incidental report of dream enactment suggests a diagnosis of REM sleep behaviour disorder. The depression appears to be work-related, resulting from an adjustment disorder which has been appropriately treated but persists and therefore can be considered permanent. Additional reasonable treatment options are not available but it can be concluded, therefore, that he is permanently incapacitated."
"Case Discussion.
Key Medical Consideration
The key medical consideration in this appeal is whether or not the Appellant has a disablement which can be considered to be permanent and, if that is the case, whether the Appellant is able to undertake regular employment.
Detailed Case Discussion
The Board considered carefully all of the material adduced in this case, including the contents of the case work papers, the written submissions, the verbal submissions at the hearing and the findings at the clinical examination.
The Board decided that the Appellant is suffering from depression in the form of an adjustment disorder.
The Board recognised that there is no evidence of a diagnosis of sleep apnoea today.
The Board recognised that the Appellant has an additional diagnosis of REM sleep behaviour disorder.
The Board decided that the REM sleep behaviour disorder is not relevant to his incapacity to work, in that an individual with that disorder would not normally have difficulty in pursuing gainful employment.
The Board decided that the Appellant's symptomatology is a somatoform manifestation of the adjustment disorder.
The Board recognised that the adjustment disorder and its consequences have resulted in intermittent incapacity to attend work over the past eight years.
The Board came to the view that the Appellant's current absence from work, since May 2010, appears to be due to ongoing symptoms associated with the adjustment disorder, together with a perception of pressure from the attendance and disciplinary management processes.
The Board decided that the Appellant's condition has become habituated with disabling somatoform symptoms over eight years despite substantial, sustained and appropriate treatment interventions under the supervision of a consultant psychiatrist.
Despite the suggestion that further options are available for treatment, the Board noted that no specific further treatments have been suggested by any of the experts and other doctors involved in the case.
The Board came to the view that treatment has been reasonable and there is no evidence that the Appellant has not cooperated fully with all the treatment offered.
The Board accepted that there is no realistic prospect of the Appellant being able to return to work in the Fire Service.
After careful consideration of all the aspects of this case, the Board came to the opinion that the Appellant should be considered to be likely to be permanently disabled from performing his duty as a firefighter.
In addition, at assessment at the Board hearing, the Board decided that the Appellant is unlikely to be able to undertake regular employment, as defined in the legislation, at present.
However, the Board considers that the prognosis for subsequent improvement, such that the appellant could take up gainful employment, is good, outside the Fire Service.
Determination of the Board
The Board came to the unanimous decision that the Appellant is suffering from depression in the form of an adjustment disorder, and that this disablement should be considered to be permanent.
The Board decided that the Appellant is not, at present, able to undertake regular employment."
"States of subjective distress and emotional disturbance usually interfering with social functioning and performance arising in the period of adaptation to a significant life change or a stressful life event...the manifestations vary and include depressed mood, anxiety or worry (or a mixture of these)...the predominant feature may be a brief or a prolonged depressive reaction or a disturbance of other emotions and conduct."
Grounds of Challenge
Ground 1. It is alleged that the Board was incorrectly constituted from the start because there was no psychiatrist on the panel.
Ground 2. It is alleged that the Board should have adjourned and appointed a psychiatrist when it was clear that sleep apnoea did not form any part of Mr Coogan's proper diagnosis. Alternatively, it is said that it should have adjourned for further reports from a psychiatric specialist.
Ground 3. It is alleged that the Board's diagnosis was irrational because it is said to be unsupported by any proper reasoning. Specifically, it is alleged to be unclear from the Board's report whether they concluded that Mr Coogan was suffering from depression which was likely to be permanent or that he was suffering from an adjustment disorder which was likely to be permanent. It is also alleged that if and insofar as the Board relied upon the diagnosis of an adjustment disorder, there was no proper indication of the Board's reasoning.
Ground 4. It is alleged that the Board's conclusion on permanence was irrational.
Discussion of the issues.
"Third member: a consultant physician who is a specialist in the medical condition relevant to the appeal.
"In some cases it may be necessary to appoint two specialists to the Board." [Underlining added]
That shows, so LFEPA submits, that there must be a specialist for every condition relevant to the appeal. Mr Seaward, who has considerable experience in this field, confirmed that although three was the usual number of members on the Board, he had occasionally come across a Board with more than three members.
"The appellant has appealed against the opinion of the IQMP that he is not likely to be permanently disabled from performing his duty on account of depression and sleep apnoea. The Board was to consider whether or not the appellant has a permanent disablement. If the Board considered that there was a permanent disablement then the Board was to consider whether the appellant would be able to undertake regular employment as defined in the regulations."
"Key medical consideration. The key medical consideration in this appeal is whether or not the appellant has a disablement which can be considered to be permanent and, if that is the case, whether the appellant is able to undertake regular employment."
That was the correct question and the question which the Board then set out to address.