Dumfries & Galloway Council, Re An Application For Judicial Review [2006] ScotCS CSOH

2. Home Office Guidance dated October 1999 containing assorted papers, and headed "Medical Appeals under the Police Pension Scheme: Notice by Home Office to Medical Referees".

3. SPPA General Guidance to Medical Referees dated August 2002.

Dr Downie studied those documents in preparation for the hearing. He also obtained information about Mr Houston from a general practitioner, a consultant psychiatrist, a consultant psychologist, and the Force medical officer Dr Wilson.

[19] In mid-October 2003, Mr Houston prepared a 12-page submission headed "Information in support of Claim", detailing events at work (including changing management policies and procedures) and their effect on him. He made reference to increased workloads, reduced staffing levels, the taking home of work, unachievable work targets, public rebukes, and other similar matters resulting in feelings of increasing pressure, irritability, tension, and sleep disturbance. He sent the submission to Dr Downie. A copy was forwarded to the Force.

[20] By letter to Dr Downie dated 30 October 2003, the Force refuted Mr Houston's claim that management policies and procedures had led to his ill-health retirement. The letter further stated that if Dr Downie intended to hear verbal submissions on that matter, the Chief Constable (or one of his representatives) might wish to give a verbal submission.

[21] By letter to Dr Downie dated 17 November 2003, Mr Houston stated his assumption that the Force would have provided a written response to his 12-page submission. He requested a copy of that response. He pointed out that otherwise he would not have fair notice of the position being adopted by the Force.

[22] By letter to Dr Downie dated 26 November 2003, Mr Houston again pointed out that, in the interests of fairness, it would be prudent for the Force to give their comments for perusal prior to the hearing "to allow for the preparation of any rebuttal".

[23] By letter to the Force dated 1 December 2003, Dr Downie asked whether the Force intended to provide a written response to Mr Houston's submission.

[24] By letter to Dr Downie dated 10 December 2003, Chief Inspector Stewart Wilson of the Force advised:

" ... Dr Wilson will represent the interests of the force at the hearing in respect of the medical issues, which are relevant to the circumstances.

While I note you indicate that Mr Houston will be accompanied by David Dick of the Scottish Police Federation, my understanding is that this will not be the case, provided that the Force will not be similarly represented.

If however it transpires that David Dick is to attend, then the Force would be present. It is appreciated that neither of us will be likely to play an active part in the hearing ..."

[25] In the subsequent paragraphs of the letter, Chief Inspector Wilson indicated that Mr Houston's 12-page submission appeared to go beyond the remit of the appeal hearing. He commented that if, nevertheless, that submission was to be given consideration during the hearing, the Force wished to be advised of that fact, so that the Force could let Dr Downie have "a more balanced perspective than that which Mr Houston has portrayed". A manuscript note had been added to the Force file copy of the letter of 10 December 2003 in the following terms:

"15/12/03 - Dr Downie phoned. Requests representation at hearing (of self and PC Dick) but no need for retort to submission by Ex.C.I. Houston. S.W. C.I. 15/12/03"

Chief Inspector Wilson confirmed that he had written the note, and Dr Downie confirmed that he had spoken to the chief inspector by phone and had indicated that there was no need for a written submission, as the Force could deal with the issues at the appeal hearing.

[26] Dr Downie was not sure why it was suggested that neither Mr Dick nor Chief Inspector Wilson would be likely to play an active part in the hearing. As he put it, "I had written evidence, but I would have been prepared to listen to verbal evidence". Dr Downie was working on the assumption that his role was to identify the cause of Mr Houston's illness. Without looking at the broad picture, it was difficult to reach a conclusion. However Dr Downie had not specifically advised or instructed the Force what to do. He did not feel that it was wrong that there was no written submission from the Force. He would have been happy to listen to their submissions at the hearing.

The appeal hearing

[27] I found the following facts proved:

[28] The appeal hearing was arranged to take place at a general practitioner's surgery, Lochthorn Medical Centre, on Friday 19 December 2003 at 2.30 p.m.

[29] At a relatively early stage in proceedings, Dr Downie began to interview Mr Houston on his own. Dr Downie wished to take a clinical history of the depression, and he felt that Mr Houston was entitled to the same confidentiality as any other medical patient.

[30] The Force medical officer, Dr Wilson arrived at the surgery some minutes later. When he learned that Dr Downie was interviewing Mr Houston alone, he went to join them. It was not clear on the evidence whether Dr Wilson was permitted to remain with them, or whether he was asked to leave. Dr Wilson did not in fact mind whether Dr Downie interviewed Mr Houston in private. As he put it, "I didn't think it made much difference ... I didn't see any problem with it."

[31] After the one-to-one interview, the appeal hearing proper was convened. Five persons were present: Dr Downie, Mr Houston supported by Mr Dick of the Federation, Chief Inspector Wilson (representing the interests of the Force), and the Force medical officer Dr Wilson.

[32] Chief Inspector Wilson had with him a typed Summary of Issues with five headings, namely Change Management; Management Styles; Fairness and Equality; Stress; and Default. The summary represented a general overview of the Force position, and to some extent provided a response to points made by Mr Houston in his 12-page submission. It was the chief inspector's intention to read out the summary at the hearing.

[33] Dr Downie announced that the appeal hearing would start, and began to explain how he would approach the question of causation. Mr Dick then read out a statement indicating that he and Chief Inspector Wilson should not be present while personal medical matters were being discussed. Chief Inspector Wilson responded by pointing out that he had some comments to make on management issues, if given the opportunity. Mr Houston objected to the introduction of the Force comments on management issues at that late stage, without his having had any advance notice, despite his requests.

[34] Dr Downie was taken aback by these developments. The weight of the evidence suggests that he was unsure what to do. He referred to his guidance notes. Dr Wilson then voiced a view that medical matters should not be discussed in front of lay people, and that the two officers should perhaps leave. Dr Downie made no explicit verbal response. He may have appeared to nod. At all events, his behaviour was interpreted by both Mr Dick and Chief Inspector Wilson as an agreement that they should be excluded while medical matters were dealt with. Both officers left. Chief Inspector Wilson was under the impression that he would be allowed to return to the hearing at a later stage in order to present submissions on management issues, but Mr Dick was under the impression that neither of them would participate further. Both men sat chatting in the surgery reception area - Chief Inspector Wilson remaining in the premises because he thought that he would be recalled to the appeal hearing; and Mr Dick remaining in the premises because he wished to be available as a support for Mr Houston, and also because Mr Houston's car was his only means of transport home.

[35] Meantime Dr Wilson sat with Dr Downie and Mr Houston, expecting to deal with medical issues at that stage, and anticipating that, if management issues were still live, the two officers would be brought back to make any representations they thought fit. However Dr Downie, for his part, was operating on the basis that both Mr Dick and the chief inspector had voluntarily waived any right to make further submissions or contributions to the appeal hearing.

[36] Dr Downie continued the appeal hearing with Mr Houston and Dr Wilson. Mr Houston's 12-page submission was considered. Dr Downie took into account certain material from that submission, including information about increased workloads, reduced staffing levels, the taking home of work, unachievable work targets, public criticisms of Mr Houston, and Mr Houston's feeling of increasing pressure at work resulting in certain behavioural symptoms such as increased irritability, an inability to relax, and sleep disturbance. Dr Downie also took into account letters from Mr Houston's general practitioner, consultant psychiatrist, consultant psychologist, and the Force medical officer Dr Wilson.

[37] Having considered those matters, Dr Downie reached a view favourable to Mr Houston. As he put it, he felt that he had "sufficient information to believe that the cause of the depressive illness was job-related". He communicated his feeling to Mr Houston and Dr Wilson. Dr Wilson, who had been expecting a two-stage procedure, was taken aback, but felt that there was nothing he could do except to leave the hearing and report to the chief inspector and Mr Dick that a final decision had been reached. Mr Dick was not surprised by developments. The chief inspector on the other hand was surprised, but made no representations at the time. Everyone then left the surgery.

[38] The following day, Dr Downie issued a certificate dated 20 December 2003, certifying that Mr Houston was disabled from performing the ordinary duties of a member of the police force; that the disablement was likely to be permanent; that the disabling condition was depression; and finally that "the condition [i.e. depression] is the result of an injury received in the execution of duty ... the condition was probably initiated and certainly exacerbated in the execution of duty." Dr Downie also produced a report with a covering letter dated 21 December 2003. In that report, Dr Downie indicated that Mr Houston had made a good recovery from his heart attack, but was still suffering from depression. The report concluded:

"It is my opinion he is disabled as the result of injury received in the execution of duty and this disablement is likely to be permanent."

Relevant guidance for medical referees

[39] The regulations and guidance applicable to police pensions appeal procedure include the following:

(i) The Police Pensions Regulations 1987 (S.I. 1987/257)

Schedule H provides inter alia:

"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."

(ii) SPPA General Guidance to Medical Referees dated August 2002

Paragraph 6 of the SPPA General Guidance to Medical Referees dated August 2002 provides:

"The conduct of the hearing

The Police Pensions Regulations do not lay down procedural rules for the hearing. However, you have the responsibility for ensuring that it is conducted with due regard to fairness and the principles of natural justice. The following points may help ...

1. You are entitled to conduct a physical examination of the appellant or to appoint any other person for that purpose ...

2. Each party must be given a reasonable opportunity to present their arguments and to comment on the submissions (written and oral) made by the other. You should not enter into discussions about the subject matter of the appeal with either party without the other party having an opportunity to be present or represented - see paragraphs 9 and 11 ..."

Paragraph 8 provides:

"Attendance and representation at appeal hearing

The Regulations provide that the appeal hearing, including any interview or medical examination, may be attended by the selected medical practitioner (SMP) and any duly qualified medical practitioner appointed by either party. In many cases the SMP will also act as the police authority's medical representative at the hearing. If such medical practitioners wish to attend you must allow them to do so. At all stages of the appeal, including any examination. If you would have difficulty in accepting this legal requirement, you should not agree to act as referee.

The question of people other than the nominated medical practitioners being able to attend the appeal proceeding is a matter within your discretion. However we would advise as follows:

(a) it is reasonable, as a rule, to restrict attendance to those with a right to attend (i.e. those medical practitioners referred to in paragraph 9);

(b) where a non-medical person such as a solicitor turns up without prior warnings, you should not let him attend the proceedings;

(c) if, reasonably in advance of the interview/examination, a solicitor or other non-medical person indicates that he wishes to attend on behalf of either party, you should say that you would allow this only if his attendance is clearly agreed by the other party to the appeal.

In order that justice is not only done but also seen to be done, you should take care not to exclude one party present at the appeal from any conversation or discussion you are having with the other. You should also avoid using the time before or after the appeal to hold a conversation with either party on their own, whether the matter discussed is or is not relevant to the appeal ..."

Paragraph 13 provides:

"Issues of fact

If there are disputes about facts you should (a) ensure that each party provides you with the clearest possible evidence in support of their case, (b) allow each party to comment on the other's evidence, and (c) come to your decision on the balance of probabilities".

(iii) Home Office Guidance for Medical Referees dated October 1999

Paragraph 17 of the Home Office Guidance dated October 1999 provides:

"If there are disputes about facts you should ensure that each party provides you with the clearest possible evidence in support of their case, allow each party to comment on the other's evidence, and come to your decision on the balance of probabilities."

Submissions

Submissions for the petitioners

[40] Mrs Swanson submitted that the petitioners' first plea-in-law should be sustained, and Dr Downie's decision reduced. The appeal had been conducted without due regard to the principles of natural justice and fairness. Four specific duties had been breached: - (i) the duty to ensure that neither party was excluded from the hearing; (ii) the duty to allow both parties an opportunity to present their case; (iii) the duty to consider all relevant material available prior to making a decision; and (iv) the duty to give reasons for the decision.

(i) The duty to ensure that neither party was excluded from the hearing

[41] Reference was made to paragraphs 6 and 8 of the SPPA General Guidance to Medical Referees. (a) One-to-one interview: The evidence established that Dr Downie and Mr Houston had been alone together in the examination room. They had a one-to-one conversation. The subject-matter of the conversation was irrelevant. A breach of the rules had occurred. (b) Exclusion of the two police officers from the hearing: The evidence of Chief Inspector Wilson and Mr Houston was to the effect that the chief inspector had expressly said that he wished to make representations. Mr Houston had considered that unfair, because he thought that there should have been writing in advance. The weight of the evidence pointed to an understanding that the officers would go back into the examination room. Dr Wilson, Chief Inspector Wilson, and Mr Houston all gave evidence to that effect. Chief Inspector Wilson and Mr Dick had therefore been wrongly excluded from the appeal hearing.

(ii) The duty to allow both parties an opportunity to present their case, and

(iii) The duty to consider all relevant material available prior to taking a decision

[42] In conducting the hearing in the way he did, Dr Downie was in breach of duties (ii) and (iii). Chief Inspector Wilson had prepared a summary of the issues he wished to speak about. Prior to the hearing, he had been told by Dr Downie that there was no need for a written response, as he could come to the hearing and make oral submissions. Dr Downie had been aware well before the hearing that the chief inspector wished to make representations on behalf of the Force. It might be said that no objection had been raised about the way in which the hearing progressed. But Dr Downie was in charge of procedure, and he allowed events to unfold in the way they did. Even if Dr Downie was of the view that it was appropriate to exclude Mr Dick and Chief Inspector Wilson from the medical examination, he had a duty to ensure that they were brought back to present any submissions, and to put relevant material before him.

[43] In support of duties (ii) and (iii), Mrs Swanson referred to the SPPA General Guidance to Medical Referees, paragraph 13, and to several authorities, namely Barrs v British Wool Marketing Board, 1957 S.C. 72; Mahmood v West Dunbartonshire Licensing Board, 1998 S.C.L.R. 843; McDonnell, petitioner, 1987 S.L.T. 486; Graham v Ladeside of Kilbirnie Bowling Club, 1990 S.C. 365; Malloch v Aberdeen Corporation, 1971 S.C. (H.L.) 85; R. v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 Q.B. 456, at page 476; CRS Leisure Ltd. v Dumbarton District Licensing Board, 1990 S.L.T. 200, at page 202C-G; Brentnall v Free Presbyterian Church of Scotland, 1986 S.L.T. 471, at pages 488-489; Tait v Central Radio Taxis (Tollcross) Ltd., 1989 S.L.T. 217, at page 221D.

(iv) The duty to give reasons for the decision

[44] There had been a further breach of natural justice because of a failure to give reasons. In the certificate issued by Dr Downie, he stated that the appellant was permanently disabled in respect of "depression", and that the depression was "the result of an injury received in the execution of duty ... The condition was probably initiated and certainly exacerbated in the execution of duty". In a covering letter he set out the procedure which had taken place, and concluded:

"It is my opinion [Mr Houston] is disabled as the result of injury received in the execution of duty and this disablement is likely to be permanent."

The fact that no reasons were given for the decision was in itself a breach of natural justice, and sufficient for the decision to be reduced. Reference was made to Lonhro plc v Secretary of State for Trade and Industry [1989] 2 All E.R. 609, at page 620B; Bass Taverns Ltd v Clydebank District Licensing Board, 1995 S.L.T. 1275, at page 1277E-I; Chief Constable v Lothian & Borders Police Board, 2005 SLT 315, at page 336; Safeway Stores plc v National Appeal Panel, 1996 S.C. 37, at page 40. Reference was also made to the Home Office Guidance, paragraph 13, and the SPPA Guidance paragraph 10.

Concluding submissions

[45] It was submitted that breach of any one of the duties (i) to (iv) would be sufficient to entitle the court to sustain the petitioners' first plea-in-law. The decision should be reduced.

[46] Finally, Mrs Swanson sought to anticipate what might be said against the petitioners, and made six points in answer:

(1) It might be suggested that there was no causal link between the procedural flaws and the final decision. However that was not the case: the Force had substantial arguments to present, contradicting Mr Houston's position.

(2) It might be argued that no objection was made at the time. However that did not constitute a bar to any subsequent challenge: cf. Mahmood, cit. sup.

(3) It might be argued that the Force was not without a representative, because Dr Wilson was present. But it was clear on the evidence that Dr Wilson had not taken on the role of addressing Mr Houston's submissions about management issues: that was for Chief Inspector Wilson.

(4) It might be said that the SPPA Guidance and Home Office Guidance were indeed merely guidance, with no legal force. But even if those publications were disregarded, it was clear at common law that a decision-maker such as a medical referee required to obey the rules of natural justice.

(5) Points might be taken about the reliability (or otherwise) of certain evidence (for example, when Dr Wilson entered the examination room). But those parts of the evidence were not relevant to the core of evidence upon which the petitioners relied to demonstrate a breach of the principles of natural justice.

(6) Ultimately it was irrelevant whether the two officers had left voluntarily, or had been asked to leave: the issue was the impropriety of concluding the hearing without giving either of them some opportunity to present their response, and the failure on the part of the decision-maker to have all the relevant materials in front of him (duties (ii) and (iii)).

Submissions for the interested party Mr Houston

[47] Senior counsel for the interested party invited the court to refuse the petitioners' first plea-in-law.

Unusual and unique features of police pension appeals

[48] Counsel submitted that in terms of Schedule H paragraph 4, the appellant or the police authority "may" submit a written statement to the medical referee: it was not mandatory. Whether or not to submit such a statement was a matter for the party concerned.

[49] Further, Schedule H paragraph 5 provided:

"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."

There was therefore no absolute right to attend. There might be an issue where the discretion lay: i.e. whether it was the discretion of the medical referee, or the discretion of either party. The SPPA Guidance attempted to clarify the matter.

[50] Reference was made to paragraph 8 of that guidance (quoted in paragraph [39] above). Counsel submitted that the SPPA Guidance was indeed only guidance. It was not the law. Whether or not to allow the attendance of anyone lay in the hands of the medical referee. He was the master of the procedure.

[51] In relation to the attendance of "people other than the nominated medical practitioners", the referee had a discretion. There was no provision in the Regulations that a non-medical person could attend: the matter was left to the discretion of the medical referee.

[52] Matters of attendance had to be viewed in the context of what was fair and reasonable, in the context of natural justice. Paragraph 8(a) was arguably inaccurate, as on a proper construction of paragraph 5 of Schedule H of the Regulations, no-one had a right to attend. The referee was the master of procedure; he had discretion to allow or to refuse attendance. The SPPA Guidance was at odds with the statutory regulations. A non-medical person could attend "only if his attendance is clearly agreed by the other party to the appeal". There had been no such agreement in the present case.

[53] Counsel referred to Strathclyde Joint Police Board v McKinlay, 2005 S.L.T. 764, at paragraph [35], and to the cases cited by the petitioners, namely Barrs v British Wool Marketing Board, and Mahmood v West Dunbartonshire Licensing Board, cit. sup. He submitted that the test was whether, on the evidence viewed objectively, a reasonable man would have thought that what occurred was unfair. There was a conflict on the evidence. It was for the court to determine what (on the evidence) had happened; and whether what had happened was unfair from the viewpoint of a reasonable man.

[54] Cases such as McDonnell, petitioner; CRS Leisure Ltd. v Dumbarton District Licensing Board, and Tait v Central Radio Taxis (Tollcross) Ltd. cit. sup. were illustrative examples, decided on their own facts and circumstances. The present case had to be decided on its own facts, i.e. in the context of a medical referee's appeal hearing: cf. dicta in paragraph [43] of Strathclyde Joint Police Board v McKinlay, cit. sup.; Lloyd v McMahon [1987] AC 625, at page 702G. The present case was governed by Schedule H of the Regulations. The cases cited by Mrs Swanson were not necessarily relevant in the context of a case such as the present. One had to refer to the statute: the 1987 Regulations: cf. dicta in paragraphs [45] and [46] of Strathclyde Joint Police Board v McKinlay, cit. sup. Lord Reed distinguished the police pension procedure from normal litigation. The medical referee was carrying out an "investigation" to determine the matter of new. He was not an appeal court in the legal sense from the selected medical practitioner. The hearing was a new hearing. The medical referee was entitled to take into account material which had never been before the SMP (selected medical practitioner). The medical referee had to interview the person. Any question of medical causation was a medical issue, for the medical referee to determine: cf. Bradley v London Fire and Civil Defence Authority [1995] I.R.L.R. 46, paragraphs 29 to 30; R. v Kellam, ex parte South Wales Police Authority [2000] I.C.R. 632, at page 644H; Phillips v Strathclyde Joint Police Board, 2002 S.L.T. 1271, at page 1274F; and Lothian and Borders Police Board v Ward, 2004 S.L.T. 215. In the present case, the decision-maker was a medical man, and the principal issues to be determined were medical issues.

[55] Particularly significant was the passage by Lord Reed in Strathclyde Joint Police Board v McKinlay, cit. sup., at paragraph [48]:

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

Counsel urged the court to adopt that approach.

[56] The decision-maker had vested in him extraordinary powers: cf. the observations in paragraphs [51] to [54] of Strathclyde Joint Police Board v McKinlay, cit. sup. The proceedings before a medical referee were unusual. The referee was master of his own procedure. He must act fairly, but that was to be construed in the particular context of the procedure. The procedure was informal. The referee was a medical man. So the requirements of natural justice which might be considered appropriate in litigation did not necessarily apply. Against that background, the test was the test in Mahmood, namely: what would an objective reasonable man devine from the circumstances.

No breach of natural justice

[57] Counsel then turned to the facts of the case, under two sub-headings: (i) the one-to-one interview; and (ii) the main hearing with the withdrawal of the two officers.

(i) The one-to-one interview:

[58] The evidence suggested that the preliminary examination was truly preliminary. It was not intended to be the appeal proper. The medical referee was bringing himself up-to-date with Mr Houston's current medical condition. That was nothing to do with the need to determine whether he had sustained an injury in the course of duty as a police officer. The weight of the evidence established that Dr Downie was alone with Mr Houston for only a few minutes before Dr Wilson arrived. Dr Wilson was then quickly brought up-to-date. There had been no objection at the time. There was an inference of acquiescence on the part of Dr Wilson. All of those events had taken place against a background of Mr Houston being very nervous. On the evidence, there had been no breach of natural justice under this sub-heading.

(ii) The main hearing with the withdrawal of the two officers:

[59] The criticism was that Dr Downie had allowed a situation to develop whereby Chief Inspector Wilson was prevented from making a submission. Counsel submitted that the evidence suggested the contrary. The evidence suggested what a reasonable man would have seen as a decision made jointly by Chief Inspector Wilson and Mr Dick to withdraw absolutely from the proceedings. Only Chief Inspector Wilson claimed (a) actually to have stated in the hearing that he wished to read out his submission; (b) that Dr Downie instructed both himself and Mr Dick to leave the hearing (the thrust of the other evidence being that Dr Downie was quite passive at that stage); (c) actually to have stated in the hearing that if management issues were to be raised, he wanted to address the medical referee. The proper test was whether or not the medical referee was entitled to assume that the two men were not coming back. If he was entitled to assume that the two had left for good, the petitioners failed, because the onus of proof rested on them. The petitioners had to prove that Dr Downie was not entitled to make such an assumption. The previous correspondence informed only the expectations of Dr Wilson and Chief Inspector Wilson. The letters showed only what those two persons thought would happen. But the important matter was what the medical referee thought about what was unfolding at the time. His evidence was that he was surprised by the turn of events. A letter dated 24 November 2003 from Dr Downie to the Chief Constable showed that the referee expected to consider the evidence of both parties. The letter dated 10 December 2003 from Chief Inspector Wilson to Dr Downie (quoted in paragraph [24] above) reflected what in fact happened: in the event, neither the Force representative nor the Federation representative played any active part.

[60] The court should view the matter from the perspective of the medical referee in the particular circumstances of the case. It was entirely a matter for the Force whether they lodged a written statement. Ultimately they chose not to. Thus the medical referee had the following information:

(a) the Force had the choice whether or not to lodge a written statement: ultimately they chose not to.

(b) the Force had indicated that they did not require to have a representative present provided the Federation representative (Mr Dick) was not present: that was the context in which the two men's departure should be put.

The onus was therefore on the petitioners to prove that the medical referee was not entitled to assume that the two men had left for good. The only evidence upon which the petitioners could rely came from Dr Wilson and Chief Inspector Wilson. They represented the minority of the witnesses, and (counsel submitted) each was unreliable.

[61] Counsel then high-lighted the deficiencies in the petitioners' case:

(i) Only Dr Wilson and Chief Inspector Wilson asserted that a two-stage procedure was expected.

(ii) Dr Wilson was unreliable. He alone suggested that the two men's departure was in respect of medical issues only. The other four witnesses (Mr Dick, Mr Houston, Dr Downie, and Chief Inspector Wilson) gave evidence that the departure was unqualified. Further Dr Wilson was alone in saying that Mr Houston was composed and not agitated. On that point, his evidence was contradicted by the evidence of Mr Dick, Dr Downie, and Chief Inspector Wilson. Finally, parts of Dr Wilson's evidence were very vague.

(iii) Chief Inspector Wilson was unreliable. Only he stated that the two officers were instructed or directed by Dr Downie to leave. By contrast, Mr Houston, Dr Downie, and Dr Wilson said that there was no such instruction or direction. Further only the chief inspector asserted that he had told Dr Downie that he wanted to make a submission: the tenor of the rest of the evidence was that the chief inspector had prepared a statement, but had subsequently withdrawn without saying anything, giving an inference that he had acquiesced in not taking the statement any further.

(iv) The weight of the evidence therefore supported a tacit agreement, a decision reached, and an unqualified consensus that the two men should leave.

(v) The weight of the evidence therefore supported the picture of the parties' representatives making submissions and reaching a consensus. The medical referee was surprised, but decided that if that was what the parties wanted, that was what should happen. In such circumstances there was no application of any universal principle of natural justice.

(vi) The evidence was convoluted. The court might take the view that the evidence was too contradictory to be relied upon to any extent. In such circumstances, the petitioners failed to discharge the onus of proof resting upon them. The document which the chief inspector had prepared was more an expression of police policy than a rebuttal of Mr Houston's 12-page submission. In any event, in a hearing before a medical referee, there was no question of placing fault at the door of one party: the real question at issue was whether the disabling condition had been caused by the conditions on duty. So the fact that the chief inspector's document was not heard could not be compared with a situation where there might be a breach of natural justice because an opportunity to cross-examine was denied, or a party was prevented from giving evidence which was central to the issue: McKinlay, op. cit., paragraphs [35], [40], and [50]. The document did not contain facts central to the issue.

[62] Counsel concluded the first part of his submissions by contending that Chief Inspector Wilson and Mr Dick had agree to withdraw; and their agreement to leave matters to the doctors was unconditional.

[63] If however the court was against Mr Houston on that matter, there was a second argument, namely there had been no breach of natural justice, as there had been equality and fairness.

(1) Natural justice should be equated with fairness: Barrs v British Wool Marketing Board, 1957 S.C. 72, at page 82. Both parties were dealt with equally. Both the Force representative and the Federation representative were excluded, leaving Mr Houston to represent himself, and Dr Wilson to represent the Force. Dr Wilson was well-placed to represent the police authority. He had been briefed on what to say (a letter to Dr Wilson dated 26 November 2003 was a précis of the chief inspector's statement).

(2) The chief inspector had no right to be present: paragraph 8 of the SPPA Guidance. The matter was one for the discretion of the medical referee. If the chief inspector had no absolute right to be present, there was no breach of natural justice in excluding him.

(3) A non-medical person such as Chief Inspector Wilson could only be present with the agreement of the other party. As Mr Dick had objected to the chief inspector's presence, it followed that Mr Dick was not agreeing to the chief inspector being present.

(4) Even if it were to be accepted that the withdrawal of the two men was conditional (i.e. that there would be a return if management issues had arisen), counsel submitted that the condition could not be purified. Any expectation of return was conditional on management issues. It involved an exercise of discretion on the part of the medical referee. The tenor of the evidence suggested that only medical issues were discussed, and not management issues. Accordingly the condition was not purified.

(5) There had been no breach of natural justice, as the loss of the opportunity to put forward Chief Inspector Wilson's submission was entirely of the Force's own making. As a matter of law, there was no remedy in the present process: R. v Home Secretary, ex parte Al-Mehdawi [1990] 1 A.C. 877, at pages 898A, 900D-F, and 901B-E. In the present case, the Force had failed to lodge a statement in advance of the hearing. Chief Inspector Wilson had failed to stand his ground at the appeal hearing, by, for example, suggesting some other procedure, or making explicit the qualified nature of the withdrawal, or putting the police authority's case (such as it was).

[64] At this stage, counsel indicated that he had been dealing with the petitioners' assertions that there had been failures in (i) the duty to ensure that neither party was excluded from the hearing, and (ii) the duty to allow both parties an opportunity to present their case. He then turned to the alleged breaches of duties (iii) and (iv), i.e. (iii) the duty to consider all relevant material, and (iv) the duty to give reasons.

[65] In relation to the duty (iii) to consider all the material, counsel submitted that the matter had to be viewed from the perspective of the medical referee. If the material which the chief inspector had was not relevant, there could be no breach in not considering it. The chief inspector's prepared statement was not designed to rebut issues central to the case: cf. dicta in Strathclyde Joint Police Board v McKinlay, 2005 S.L.T. 764 at paragraphs [35], [40], [50]. Counsel submitted that the chief inspector's statement was peripheral. On any view, what the chief inspector had intended to say did not address central issues. There was no breach of natural justice in not considering it.

[66] In relation to the duty (iv) to give reasons, counsel submitted that for the purposes of natural justice, there was no absolute requirement that reasons be given. Whether or not reasons were required depended upon the character of the decision-making body, the kind of decision being made, and the relevant statutory framework. The fact that no reasons had been given did not imply a breach of natural justice. In all the circumstances, there had been no requirement for reasons in the present case. Reference was made to Lloyd v McMahon [1987] AC 625, at pages 702H to 703B. In the present case, (i) the character of the decision-making was the medical referee appeal hearing, a particular and unusual procedure, quite remote from a lis inter partes; cf. Lord Reed at paragraph [43] et seq. in Strathclyde Joint Police Board v McKinlay cit. sup. (ii) The kind of decision being undertaken was the medical referee deciding a matter of medical opinion: cf. dicta of Lord Reed at paragraphs [35], [40], and [50]. There might be cases where the medical referee had to consider legal matters, but this case was not one. The referee was entitled to draw on his own experience when coming to his view. (iii) The statutory framework was the Police Pensions Regulations. Those regulations did not require reasons: cf. McKinlay cit. sup. at page 766. A certificate had to be issued in terms of regulation H2(3): there was no mention of reasons. Furthermore, police pensions appeals did not fall within the category of cases regulated by the Tribunals and Inquiries Act 1971. They were not a procedure falling within Schedule I. They were not governed by section 12 of the 1971 Act (the requirement to give reasons). As the statutory framework did not require reasons, the court should not impose that requirement. Reference was made to Lonrho plc v Secretary of State for Trade and Industry [1989] 1 W.L.R. 525, at page 620 f-g; Bass Taverns Ltd. v Clydebank District Licensing Board, 1995 S.L.T. 1275; JAE (Glasgow) Ltd v City of Glasgow District Licensing Board, 1994 S.L.T. 1164; Purdon v City of Glasgow District Licensing Board, 1989 S.L.T. 201, at page 203L to 204D; and the Police Pensions Regulations, Regulation H2(3).

[67] It was true that the SPPA Guidance suggested that reasons should be given. But that guidance formed no part of the statutory framework. The guidance did not have the effect of instituting a mandatory requirement. Where the guidance suggested that reasons be given, that was simply a counsel of perfection. There was in fact no need for reasons.

[68] Counsel then referred to Carr v UK Central Council for Nursing, Midwifery and Health Visiting, 1989 S.L.T. 580. The medical referee was in effect acting as a professional jury. Even although there was a right of appeal, it was not necessary to state reasons. In Dundee United Football Co Ltd v Scottish Football Association, 1998 S.L.T. 1244, at page 1244F, it was said that where there was a right of appeal, that could be seen as an argument in favour of giving reasons. In the present case, there was expressly no right of appeal. In Thomson, petitioner, 1989 S.L.T 343, at page 345C-D, Lord Dervaird accepted that a requirement to give reasons was not part of any principle of natural justice. In Lawrie v Commission for Local Authority Accounts in Scotland, 1994 S.L.T. 1185, at pages 1189H-J, 1190E-F, 1191I-1192H, Lord Prosser accepted that natural justice did not require the giving of reasons. Having regard to the character of the decision-making, the kind of decision being undertaken, and the statutory framework in the present case, counsel submitted that Lord Prosser's dicta applied, and the principles of natural justice did not require the giving of reasons.

[69] Counsel concluded by inviting the court to repel the first plea-in-law for the petitioners and to refuse the petition.

Opinion

Written submissions

[70] Written submissions are not mandatory: Schedule H, paragraph 4 of the Police Pensions Regulations 1987 (quoted in paragraph [39] above). Nevertheless once Mr Houston had produced a 12-page submission outlining his position, it was open to the medical referee to invite a written response from the Force, bearing in mind the terms of paragraph 6 of the SPPA General Guidance to Medical Referees:

"... Each party must be given a reasonable opportunity to present their arguments and to comment on the submissions (written and oral) made by the other."

[71] In this particular case, Mr Houston wished to see the Force's written response to his submission. He asked Dr Downie for a copy, pointing out that he would not otherwise have fair notice of the position being adopted by the Force. In the circumstances, it was perhaps unfortunate that the Force were not invited to submit a written response. The lack of a written submission from the Force made the fair conduct of the appeal hearing all the more important.

Interview with Mr Houston alone

[72] In my view, Dr Downie was entitled to carry out a medical examination of Mr Houston in private. In terms of paragraph 8 of the SPPA General Guidance, "The Regulations provide that the appeal hearing, including any interview or medical examination, may be attended by the selected medical practitioner (SMP) and any duly qualified medical practitioner appointed by either party ... If such medical practitioners wish to attend, you must allow them to do so at all stages of the appeal, including any examination." In the present case, the selected medical practitioner Dr Wilson was not insistent that he should be present throughout the medical examination of Mr Houston. In such a situation, the medical referee was in my view entitled to conduct all or part the medical examination of the appellant without any other person being present. It was however all the more important that there should subsequently be a fair appeal hearing at which parties could lead evidence, ask questions, and make submissions.

The departure of the two officers from the appeal hearing

[73] The crucial issue for determination by the medical referee was whether Mr Houston's depression was work-related and therefore "an injury sustained in the execution of his duty".

[74] Mr Houston's contention was that his work circumstances, including increased workloads, reduced staffing levels, unachievable work targets, public rebukes, and other similar matters largely arising from management policies and procedures, had caused his depression.

[75] The Force, on the other hand, refuted that contention. If such matters were to be explored in the course of the appeal hearing, the Force wished to have an opportunity to present "a more balanced perspective than that which Mr Houston ... portrayed."

[76] In such circumstances, paragraphs 6, 13, and 17 of the SPPA and Home Office Guidance (quoted in paragraph [39] above) were particularly relevant. There was a sharp dispute in fact, going to the core of the cause of the pursuer's condition. It was clearly important that each side should be given an opportunity to present their case at the appeal hearing, a fortiori as the medical referee had received a written submission from Mr Houston but not from the Force.

[77] What occurred on 19 December 2003 was the hearing of one side only. As will be seen from the facts which I found proved (noted in paragraphs [28] to [38] above), I accept that Chief Inspector Wilson expressly stated at the appeal hearing that he had some comments to make on management issues, given the opportunity. I reach that view as not only did the chief inspector give evidence to that effect, but so did Mr Houston, who was particularly alert to the possibility of having to deal with late submissions about management issues from the Force (as his requests for advance written notice had proved fruitless). Despite the chief inspector's specific statement that he wished to present the Force side of the case, he was never given an opportunity to do so, for, as matters developed (noted in paragraphs [33] to [37] above) what occurred was not an express instruction by Dr Downie that the chief inspector and Mr Dick should depart, but rather a series of assumptions, misunderstandings and failures in communication, ultimately leading to a breakdown in procedure.

[78] In my view, it was incumbent upon Dr Downie, as the master of the proceedings, not to remain silent when Mr Dick and the chief inspector were apparently voluntarily leaving. Dr Downie had a duty to attempt to clarify what was happening, by, for example, expressly asking each of the departing officers to state his position and intentions. Waiver of a right to attend, to lead evidence, to ask questions, and to make submissions, is too important a matter to be left to inference and nuance. Bearing in mind the clear terms of paragraph 17 of the Home Office Guidance, and paragraph 6 of the SPPA Guidance, a medical referee must make every effort to "ensure that each party provides [him] with the clearest possible evidence in support of their case [and] allow each party to comment on the other's evidence"; also to give each party "a reasonable opportunity to present their arguments and to comment on the submissions (written and oral) made by the other". If a party appears to be waiving his opportunity to attend the hearing, or to present evidence or argument, the medical referee should in my view specifically explore the situation to ensure that the party has not misunderstood matters, and is not labouring under a misapprehension. A referee cannot necessarily assume that a party has a clear understanding of what is happening. Nor can a referee necessarily assume that a party will properly explore or analyse matters for himself, as formal hearings tend to engender a respectful silence which is not conducive to interventions.

[79] Accordingly, even taking into account the special and unique features of police pensions appeal procedure, all as described in Strathclyde Joint Police Board v McKinlay, 2005 S.L.T. 764, what occurred in this case was a failure to give the Force an opportunity to provide the medical referee "with the clearest possible evidence in support of their case [and to allow the Force] to comment on [Mr Houston's] evidence". What occurred was a failure to give the Force a "reasonable opportunity to present their arguments and to comment on the submissions (written and oral) made by [Mr Houston]". Standing the lack of a written response by the Force, it was all the more important that the medical referee heard oral evidence and/or argument from the Force. In my view therefore, there was a procedural failure which can be defined either as a breach of the SPPA or Home Office Guidance, or as a breach of the fundamental principle of natural justice audi alteram partem.

[80] Counsel for Mr Houston suggested that the Summary of Issues which the chief inspector was proposing to read at the appeal hearing did not amount to a rebuttal of Mr Houston's 12-page submission, and did not contain facts central to the issue. In my view, that is no answer to the petitioners' argument. The Force were entitled to an opportunity to present their evidence and arguments, which would not necessarily be restricted to the Summary of Issues. It cannot be asserted that the medical referee would have been completely unaffected by the Force presentation and submission.

Conclusion

[81] In my view, Mrs Swanson was correct in her contention that there was a breach of duty (ii) - the duty to allow both parties an opportunity to present their case. That is sufficient for the resolution of this petition and it is unnecessary for me to give a view in relation to the other duties prayed in aid on behalf of the petitioners.

Decision

[82] For the above reasons, I shall sustain the petitioners' first plea-in-law, and in terms of paragraph 3(1) of the petition, reduce Dr Downie's decision that Mr Houston's condition was the result of an injury received in the execution of duty. I reserve all questions of expenses to enable parties to address me on that matter. I should add that in my view it would be appropriate that Mr Houston's case be referred to a different medical referee (possibly a consultant psychiatrist) who would be able to take a fresh view of the case, particularly as Dr Downie has now retired from practice.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Dumfries & Galloway Council, Re An Application For Judicial Review [2006] ScotCS CSOH_119 (02 August 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_119.html Cite as: [2006] ScotCS CSOH_119, [2006] CSOH 119

Scottish Court of Session Decisions