Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 11

 P833/11

The Lord Justice Clerk

Lord Bracadale

Lord Glennie

OPINION OF THE COURT

 

delivered by LORD GLENNIE

 

in the petition of

 

RAR

Petitioner and Reclaimer

against

 

A UNIVERSITY

Respondents

 

Petitioner and Reclaimer:  Party

Respondent:  Poole QC; Lindsays

 

10 February 2017

Introduction

[1]        In this reclaiming motion (appeal) the petitioner and reclaimer (“the petitioner”) appeals against the decision of the Lord Ordinary dismissing her petition for judicial review of various decisions taken by the respondents (“the University”) during the time she was a student member of the University studying for a PhD in genetic epidemiology and subsequently.

[2]        The petitioner represented herself before us, as she had before the Lord Ordinary.  Although not trained as a lawyer, and although English is not her first language, she presented her arguments with clarity and precision.  We are grateful both to her and to Ms Poole QC, who appeared for the University, for their help in enabling the many and potentially diffuse issues raised in the appeal to be properly focused.

[3]        We propose first to summarise the background to the dispute.  In doing so, however, we should emphasise that, in accordance with standard procedure, the petition was decided by the Lord Ordinary at a continued first hearing under reference to the documents lodged in process, without any evidence being adduced by either party.  The Lord Ordinary made no findings of disputed fact beyond those which appeared obvious from those documents.  We are in the same position.  Although it is necessary in the course of describing what happened to refer to some of the allegations and counter-allegations made in the course of the dispute, we are not in a position to make any findings one way or the other about the substance of those allegations; and we do not do so.

 

Background facts

[4]        In August 2005 the petitioner accepted an unconditional offer from the University’s College of Medicine and Veterinary Medicine (variously “the College” or “CMVM”) of a place in the School of Clinical Sciences and Community Health (“the School” or “SCSCH”) to study for a PhD in genetic epidemiology over a period of 36[1] months.  She began work on her PhD in September 2005 and matriculated in October of that year.  In terms of the offer from the University, she was due to complete her thesis in mid to late 2008.

[5]        It is clear that the petitioner’s studies proceeded well, at least for a time.  She was assessed as having made “Very Good/Good” progress.  The research project was regarded as important. 

 

Breakdown in relations with others at the University

[6]        Matters took a turn for the worse in 2008.  Relations with others at the University, including her supervisors and collaborators, deteriorated.  The problems appear to have had their origins in a dispute in the first half of 2008 about whether the petitioner should be named as sole “first author” in the event of publication in a respected medical journal of an academic paper containing findings from her research project.  She was not prepared to accept the proposed solution, which involved her being named as joint first author but listed second behind one of the other collaborators on the project.  Thereafter, relations between her and her supervisors and collaborators deteriorated significantly, and various accusations were made.  In October 2008 she complained of being persecuted and harassed and, as a result, of suffering from severe anxiety alternating with periods of depression.  Her work was interrupted.  Later that month she emailed one of her supervisors to say that, on medical advice, she was unable to come in to the department "at least currently and in the near future". 

 

The petitioner’s formal complaint

[7]        In mid-December 2008, the petitioner filed a formal complaint against a number of named individuals at the University, including her supervisors.  By this time her list of grievances had extended to include allegations of racial and sexual discrimination.  In setting out the circumstances surrounding her complaint, she described the impact which the dispute was having on her: she had sought medical help for the severe stress and anxiety she had lived through during the latter part of 2008; and her doctor had prescribed her antidepressant medications in addition to sleeping pills.  She said that her doctor had also referred her to psychiatric support but, while the referral was in process, she had decided not to go down that path but rather to trust in herself and find her own way out of the problem.

[8]        The petitioner met senior representatives of the University on 4 February 2009.  On 20 February 2009, the petitioner wrote to one of them to say that there were two outstanding issues in her complaint.  The first sought the removal of certain supervisors about whom she had complained.  The second was a request that her studies be interrupted[2] retrospectively from March 2008 until February 2009 so that she might complete them within the 36 month period specified in the University's offer of 3 August 2005.  In due course[3] that request for a retrospective interruption of her studies from 1 March 2008 until 28 February 2009 was granted.

[9]        In March 2009, the SCSCH issued its determination of the petitioner’s complaint.  Its report contained, among other things, a section headed "Summary of Findings" and another entitled "Recommendations".  One of the recommendations was that the retrospective suspension[4] of the petitioner's studies should be granted (see above).  The report concluded on an optimistic note with the assessment that the situation surrounding the complaint had “improved considerably of late.”  The deteriorating interpersonal relationships underpinning the complaint were “unfortunate” and had clearly caused “a deal of distress on both sides”; but there was now the opportunity to put all of that to one side and for “all concerned to focus their efforts on the academic demands of this important project.”

[10]      That optimism proved to be unfounded.  The petitioner was unhappy with certain aspects of the determination and took her complaint to the Principal.  Her perception that the University failed or refused thereafter without good cause to progress and resolve her complaint to her satisfaction was one of the main causes underlying the dispute going forward.

 

Further deterioration in relations and concerns about health – the petitioner’s protest and email campaign

 

[11]      The petitioner’s relations with her supervisors, and in particular her Senior Supervisor, deteriorated.  She complained that she was denied the right to use certain data relevant to her study.  In April 2009 she commenced a public protest within the University about the way in which her complaint was being dealt with by the University, which later[5] developed into a hunger strike.  She commenced an email campaign about the same matters, copying her complaints and allegations about the conduct of the University towards her to thousands of members of the University.  Some regarded her communications as threatening.  She voiced concerns that fellow students had been sent by her Senior Supervisor to “keep an eye on her”.  On a later occasion she expressed concern that electricians coming to her house to effect some repair had been sent by the Head of School to spy on her.  A number of members of the University, including her Senior Supervisor, wanted to cut off contact with her. 

[12]      During the week commencing 4 May 2009, the petitioner sent her Head of Department an email in which she again alleged that one or more students were spying on her for her Senior Supervisor.  Later that week, on 7 May 2009, under reference to an email received from the petitioner, the Head of Department sent an email to certain colleagues expressing concern about the petitioner’s mental health, seeking their advice and asking whether there were University guidelines about what to do in “this type of situation”.  She expressed the view that the petitioner’s email “indicated considerable paranoia,” adding that she had “been informed that there have been other recent examples of paranoid behaviour” on the part of the petitioner.  She herself was not qualified to assess whether the petitioner was experiencing mental health problems but she wanted to know “what is the University’s duty of care in a case like this.”  Also on 7 May 2009, the Head of School (SCSCH) emailed the College Registrar, with a copy to the Head of College (CMVM), expressing concern about the petitioner’s mental health: “Despite her widespread accusations against colleagues, we’ve all been really worried about her health and well-being.”

[13]      On 8 May 2009 the Head of School emailed the petitioner about aspects of the complaints process, pointing out that his role in it had come to an end and noting that the petitioner had been offered an appointment with the Head of College as the next stage in the process.  After expressing the hope that things were progressing well with her “excellent PhD project”, he concluded by saying:

 

“As a GP I can’t help wondering if you are suffering from a degree of distress at present.  I would be very keen to know you are getting access to the best possible help and support services.  I make these suggestions as a concerned clinical colleague and, again, am happy to provide any help and advice you feel you need.”

 

Interruption of studies (1 May – 31 July 2009)

[14]      The petitioner visited her GP on 8 May 2009 and obtained a certificate from him advising her that she should refrain from work for two weeks for stress.  She handed it in to her supervisor on that day.  On 12 May 2009 she emailed her Head of Department, with a copy to her Head of College, informing them that she was currently on “sickness leave” and had been given by her GP a six months’ supply of medication.  The email explained that “at the moment” the GP had given her two weeks sickness leave till the medications started to take effect, but she was not expecting to be back to her studies before three to six months. 

[15]      On the same day, 12 May 2009, her Head of College replied[6] thanking her for letting him know that she had visited her GP and that ill-health currently prevented her from pursuing her PhD studies.  He assured her that “your period of study can be suspended[7] until such time as you feel well enough to return to your work”.  In the middle paragraph of that letter he said this about the processing of her complaint and his offer of a meeting with her:

“I remain very keen to see your complaint resolved, but I understand why you might not want to take up the offer of a meeting that I made in my letter dated 30th April just at the moment.  I hope that as your health improves, you will see that I am keen to do my best to help you and that the meeting I propose would be the most helpful way forward.  I don't think it is reasonable to expect me to bring Stage 2 of your complaint to a sensible conclusion without such a meeting, as there can’t be the “clear outcome” you seek … without my understanding of what is needed to complete your PhD.  I urge you to reconsider your current refusal to attend the meeting, which I would see as a means of helping me to help you.”

 

He concluded by saying that he would inform the Head of School and her Senior Supervisor that she was currently on sick leave and he asked her to keep the School informed as to when she was well enough to return to her studies.

[16]      On 13 May[8] a formal application to the College Post Graduate Studies Committee (“CPGSC”) was made by the Head of Department on the petitioner’s behalf requesting an “interruption of study” for three months with effect from 8 May 2009.  The application stated “medical reasons” as the ground for seeking the interruption.  The next day, on 14 May 2009, the petitioner sent an email to the Head of College asking to change the reason for her requested interruption of studies from one based on health grounds to one based on the intolerable working conditions under which she was labouring and which made her unable to work.  On 15 May 2009, she emailed her Head of Department, with a copy to the Head of College, confirming her request to change the basis of her application for interruption of studies which, she said, was due to an “intolerable work environment” at the University, due to the University stopping all her work and the refusal of her research group to communicate with her.  It is not clear whether and, if so, how this change of reason was passed on to CPGSC.  It may not matter for present purposes.  By letter dated 1 June 2009 the CPGSC granted the three month interruption covering the period 1 May to 31 July 2009.  The grounds on which the interruption was granted were not set out in the letter.  The revised deadline for submission of the petitioner’s thesis was noted to be 14 December 2010.

[17]      Jumping ahead slightly, we should note the petitioner’s response to the grant of a three month interruption of studies.   By email of 5 June 2009 she said that she had only provided evidence for two weeks sickness.  She had then felt better.  Accordingly she wished to resume her studies in accordance with the University regulations.  On 10 June 2009, in a direct response to the CPGSC, she  said that she had resumed her studies “a few weeks ago”, asked to be told the ground on which the interruption of studies was granted, and insisted that she had not filed a form to request an interruption.

 

Continuing concerns about the petitioner’s health, protests and hunger strike

[18]      It is clear from the documents lodged in process that the University was concerned about the petitioner’s health and wanted to ensure that the petitioner’s GP was aware of her situation.  They did manage to ascertain informally that the GP practice was aware of the situation, though issues of doctor/patient confidentiality prevented any more detailed disclosure.  In addition to confirming her change of reason for requesting an interruption to her studies, the email from the petitioner on 15 May 2009 also confirmed that she was conducting a peaceful protest from her office throughout the whole of each day, was abstaining from food and drink during the day and, for the past five days, had abstained from all food at any time. 

[19]      On the same day, 15 May 2009, after receipt of that email, which was copied to him, the Head of College replied in these terms (in a signed letter sent as an attachment to an email):

 

“I am writing to express grave concern about your health and wellbeing.  I would be very grateful if you could share this confidential letter with your GP.  Your doctor needs to know that you have been on hunger strike all this week and that you have been making public demonstrations.

 

I am also very worried that you believe that I have been sending electricians to your home, which is not true.

 

For the moment, your complaints process is suspended, in the same way as your PhD studies, until your health improves.

 

I wish you the speediest of recoveries.”

 

The petitioner emailed back immediately on receipt of that email and letter pointing out that University regulations did not provide for complaints to be suspended in case of a complainer’s health problems.  She rejected the suspension of her complaint but agreed with suspension of her studies. 

[20]      It is not necessary to look in detail at the correspondence immediately following upon those exchanges.  Suffice it to say that the petitioner continuously pressed for her complaint to be progressed.  She stated that, though she was fully fit physically to resume her studies, she needed “a clear improvement to the currently intolerable research environment” in order to fulfil her PhD work successfully.  The consistent response of the University was that it remained very concerned about the petitioner’s health and well-being.  A letter to the petitioner from the Head of College dated 27 May 2009 reflects the position taken by the University during this period:

“So far as I am aware, your doctor has advised that you’re not well enough to pursue your studies at the moment.  You express ideas of persecution when all I can see is evidence of folk wanting to help you.  Your ‘hunger strike’ is disproportionate to the original issues raised in your complaint, which relate to access to data.  I cannot resume consideration of Stage 2 of your complaint until I have independent reassurance that you are well enough to agree a way forward.  It is not rational to pressure me to arrive at an early conclusion, simply so that you can appeal further.

 

In a number of emails to me, you have expressed strange ideas that make me worry that you are experiencing a pathological level of paranoia.

 

I urge you to discuss this letter with your doctor.  I need to be reassured that you are receiving appropriate medical care.  When your doctor is happy that you have recovered, I would be happy to resume the complaints process.”

 

These exchanges marked the beginning of a stand-off between the University and the petitioner which continued through June 2009 into 2010 and beyond.  Both parties took up entrenched positions from which they did not deviate.  The University adopted the position that it was reasonable to require the petitioner to provide a medical certificate before allowing her to return to her studies.  The petitioner for her part refused to provide a medical certificate, insisting that it was unnecessary (since she could judge for herself that she was fit to return to her studies) and that the request for one was inappropriate and contrary to University regulations.

[21]      Throughout June 2009 the petitioner continued with her email campaign against what she saw as the University’s failure to deal properly with her complaint.  In the course of this, she continued to copy her emails to many thousands of staff members and others at the University. 

[22]      On 23 June 2009 a research associate at the University emailed both the Head of College and the Head of School with complaints about the petitioner.  He expressed the view, as a medical doctor by training, that he had been witnessing “a clear case” of the deterioration of the petitioner’s mental health over the preceding year.  Whilst he and his colleagues “do feel really sorry for her problems”, in recent weeks her actions and behaviour had become so far removed from sanity “that many people are now preferring to work from home and feel particularly uneasy staying at work after hours”.  He said that he was growing deeply concerned that, if her actions continued to escalate and something went terribly wrong in the end, either for herself or for others, it would not be possible to explain to any relevant services how it was possible that a person could lose her mental health over a long period of time at the heart of the University’s medical school, without anyone noticing it, complaining about it, or doing something about it to help her.  The research associate added that he was writing, in particular, in response to the petitioner’s recent string of emails which she had been circulating across the University staff mailing lists.  She was making allegations in her emails about some of his closest colleagues and collaborators which were “so far removed from reality” and “in such bad taste” that it was completely unacceptable for the University services to tolerate it.  Not enough was being done to deal with the problem.

 

The University considers its next steps – the “Case Advisory”

[23]      Perhaps prompted by this email, the escalation in the petitioner’s behaviour and the impasse over the provision of a medical certificate, the University appears to have given thought to what action could be taken to resolve the problem.  A document was prepared by the University’s Head of Academic Affairs setting out the options as she saw them.  That document is dated 23 June 2009 and entitled “Case Advisory” with the name of the petitioner beside it. 

[24]      The Case Advisory is of some importance in the case and it is instructive to quote from it at some length.  It began by setting out the context in which the advice was given: the College had serious concerns about the petitioner's mental wellbeing, and had sufficient relevant medical opinion to consider it reasonable to act on the basis of her impaired mental health; the petitioner was currently on an interruption of studies, requested on health grounds (possibly due to the stress of the current situation); and the College had asked for guidance on how it could exclude the petitioner from access to the University and the email system until she could provide medical evidence that she was fit to resume her studies.  Two “Possible Options for Action” were set out: (i) adding conditions to the complainer’s interruption of studies; and (ii) suspending computing access as a result of disciplinary action.  We quote from the Case Advisory on these two possible options:

“1.       Conditions added to interruption of studies

Whilst on an interruption of studies students are assumed to be away from the University and academic study, and so not to be using University facilities.  (Although still members of the University community, students on periods of interruption of studies are not charged tuition fees and the CoP [i.e. Code of Practice] on Student Mental Health notes that ‘The right to use University …..  computing and library facilities will be temporarily withdrawn.’ – Appendix 1, point (iv)).

 

[The petitioner] has to date continued to have access [to] her office and University e-mail facilities during this interruption of studies.  Given the recent nature of [the petitioner’s] use of these facilities and the more newly available medical advice indicating cause for concern over her mental health, particularly with regard to her use of the e-mail facilities, it would seem to me to be reasonable for the college to now temporally, during the period of the interruption of studies, withdraw [the petitioner’s] continuing access to her University office space and use of computing and e-mail facilities as a condition of the interruption.

 

As noted in the CoP on Student Mental Health (appendix 1 “Re-admission…”), “When a student has suspended studies on medical grounds, voluntarily or involuntarily, the College will require medical certification before re-admission of the student can be considered by the University.  The College will need to be satisfied that the mental illness has been brought under control.”  The matter of [the petitioner’s] resuming an appropriate usage of email would therefore be addressed at that stage as part of the review of the medical evidence.

 

2.         Suspension of computing access as result of disciplinary action

A case might be made that [the petitioner's] use of University e-mail to send numerous blanket e-mails regarding her issues to large numbers of staff constitutes a breach of the Computing Regulations (under point 2, ‘Private and inappropriate use of computing facilities’.)

 

If the College were to prepare a case on these grounds, and an appropriate Authorised Officer (one unconnected with the situation to date) were to make such a determination, then suspension of access to University e-mail/ computing facilities for, e.g., the duration of the suspension of studies would be a possible outcome.  Under the Code of Discipline 4.1.1 an Authorised Officer could take such immediate action on the basis of evidence provided if the circumstances of the case appear to warrant immediate action.  The student would then have the right to appeal this decision; such an appeal would have to be considered at a hearing of the full Discipline Committee.” 

 

Having set out the two options which were, in her view, available to the University, the Head of Academic Affairs gave the following recommendation:

“Recommendation: 

Given the College's concerns regarding [the petitioner's] mental health, it would seem most appropriate to take action in the context of the Code of Practice on Student Mental Health, rather than move to act now under the Code of Student Discipline.  Should [the petitioner] not abide by any requirements clearly set out for her regarding further (non-)use of University facilities and e-mail/computing, the matter might then be appropriately considered with respect to possible breach of discipline.

 

I would therefore advise the College consider pursuing Option 1 above.

 

In pursuing this option I believe it would be appropriate for the College to:

 

•          write to [the petitioner] to clearly state the decision, the reasons for the decision, what this will mean practically for her, and the point at which the decision will be reviewed (i.e., tying in with the requirement to provide medical evidence of being fit to resume her studies);

 

•          review and in the same letter again advise [the petitioner] on the sources of support potentially available to her – for example, should she require assistance in understanding this decision

(see CoP on Student Mental Health section 4.1 for sources of support and advice).”

 

Suspension under the Disciplinary Code
[25]      The University authorities do not appear to have accepted this recommendation.  Instead they took steps to suspend the petitioner under the University’s Code of Student Discipline (“the Disciplinary Code”), thereby in effect taking action broadly in accordance with Option 2 set out in the recommendations of the Case Advisory.  This was done by a letter to the petitioner dated 25 June 2009 from the University secretary, who had been authorised by the Principal the previous day to act as his deputy in this respect.  The letter to the petitioner of 25 June 2009 reads as follows:

“Acting on behalf of the Principal of the University I am writing to formally notify you that, with immediate effect, you are suspended from your studies at the University, in accordance with Section 5.1.7 of the University's Code of Student Discipline.

 

The Head of College has repeatedly expressed concerns about your health status, which impacts on you and many colleagues who work alongside you in the University.  There is growing concern that your distress and anxiety are now making it very difficult for other colleagues to work normally.  In addition you have been sending emails to members of the University staff making serious unfounded allegations about specific members of the academic staff with whom you work.

 

In the circumstances, acting as the Principal's deputy for this purpose, I have decided that your right of access to University facilities should be suspended until such time you can provide medical evidence that you are able to resume your studies without disrupting the work of others.

 

Please do not attempt to access University buildings for the time being, as you will be turned away. 

 

The University's code of Student Discipline is located at:  [URL provided]

 

You will see in sections 5.1.6 and 5.1.7 that you have five days within which to make written submission to me in regard to your suspension.  Sections 5.1.8 and 5.1.9 set out arrangements for review of your suspension after four weeks if it has not been lifted before then. 

 

Furthermore, to ensure unbroken communication with you, your outgoing emails will be directed to the College Registrar, [name], who will keep you informed.  If you need personal items from study sites, [the College Registrar] will help with arrangements to provide these to you. 

 

It is recognised that your complaint is unresolved.  The University wishes to ensure that it is considered appropriately.  I shall write separately about this matter in the near future.”

 

The letter was sent by post to the petitioner and the text was emailed to her, but it may be that neither the letter nor the email reached her at that time.[9]

[26]      On 26 June 2009 the University Secretary wrote to the petitioner on a number of points, one of which was to identify the Vice-Principal Equality and Diversity (“VPED”) as the person who would take forward the petitioner’s complaint.  This was not accepted by the petitioner.

[27]      By letter dated 27 June 2009 the petitioner complained to the Principal that, on 25 June, she had been asked to leave her workplace by security personnel.  She said that, according to sections 5.1.6 and 5.1.7 of the University’s regulations, in case of suspension she had five days to make representations to him.  She continued: 

“I decided to represent myself in writing.  Please find below my defence to the events of this day.”

 

In her representations attached to that letter, the petitioner contended (i) that her suspension was procedurally invalid and (ii) that the principal had no power to suspend her on an urgent basis.  She presented detailed argument in support of these contentions.   She sent further representations to the Principal on 1 July 2009.

[28]      On 1 July 2009 the University Secretary wrote to the petitioner saying that he had reviewed the files after five days as required by the Disciplinary Code.  He had reviewed all of the relevant documents and had consulted senior staff within the CMVM.  He noted that the petitioner had sought interruption of her studies for three months with effect from 8 May 2009 and that that had been granted by the College[10].  “This interruption of studies remains in force”.  It remained the University’s view that the petitioner should not have access to University premises for the time being, “and therefore the formal suspension from studies remains in place”.  He added that the reasons for this decision remained the same as set out in his letter of 24 June 2009[11] and, in particular, related to serious concern that the petitioner’s distress and anxiety had made it very difficult for other colleagues to work normally in the University.  The University owed a duty of care to all its staff and students and could not ignore the serious concerns which had been expressed.  He noted that the University also owed a duty of care to the petitioner.  For that reason they had strongly encouraged her to seek medical advice.  He added that she would not be able to resume her studies without medical certification that she was fit to do so.  That, he said, was in the context where it was the University’s strong wish to see her well again and able to complete her PhD

[29]      According to the Disciplinary Code a decision to suspend a student must be reviewed every four weeks in the light of developments and of representations made by the student or anyone else on his or her behalf.  A review was carried out on 24 July 2009 by the Academic Registrar and Deputy Secretary who was dealing with the case in the absence of the College Secretary.  He concluded that the suspension should remain in place.  It appears that there were further four-weekly reviews of the suspension going forward into 2010, all with the same result, but it is not necessary to refer to these in any detail.

[30]      It is important to note at this point that in August 2009 the University took the decision not to initiate formal disciplinary action against the petitioner.  This appears from a Memorandum prepared by the University Secretary addressed to the Principal and dated 6 August 2009.  It is in the following terms:

“Further to our discussion of this case, I should record that the possibility of initiating formal disciplinary action against [the petitioner] has been considered, but in view of our understanding of her condition the view has been taken that it would not be in her interests so to do, and may indeed be counter-productive.  However, her actions are absorbing significant amounts of senior staff time and she shows no apparent inclination [to] seek the medical help which our clinical colleagues believe to be necessary: for example, I was recently informed by her GP's practice manager that

she has severed all connection with that practice.  If there is no progress in this respect, such that she remains under suspension at the beginning of the new academic year, I would not intend to permit [the petitioner] to re-register as a student at that time.”

 

We explain later that the idea that the petitioner remained under suspension in the absence of any formal disciplinary action being taken against her reflects a misunderstanding of the power to suspend in terms of the Disciplinary Code.

 

Refusal to register the petitioner as a student in the 2009/10 academic year

[31]      Relations between the petitioner and the University continued to deteriorate.  As the Lord Ordinary noted, the main bone of contention was the University’s continuing insistence that the petitioner’s suspension would remain in place until such time as she provided medical evidence that she was able to resume her studies without disrupting the work of others, and the petitioner’s continuing refusal to provide such medical evidence.

[32]      Matters came to a head again on 11 September 2009 when the Principal wrote to the petitioner in these terms:

“Throughout the University's correspondence with you since your suspension in June of this year, we have made clear our concern for your health and wellbeing; and that we believe it is possible for you to complete your PhD studies successfully if you cooperate with the University.  We have also made clear that the University needs to be confident that your presence would not be disruptive to other students and staff, and therefore we have indicated that in order to resume your studies we need evidence from your doctor that you are fit to do so.  This is in a context where senior clinical staff in our Medical School came to the view that you were unwell and needed medical advice, and that you were not fit to undertake your PhD studies

 

We have been very disappointed that you have shown no inclination to cooperate with the University in this respect.  You have repeatedly indicated in correspondence that you are unwilling to provide the evidence we have asked for.  You have stated that you do not wish [name] to act as your supervisor, and the University has explained that it cannot consider assigning new supervisors until it is satisfied that you are well enough to resume your studies.  You have refused to accept official communications from the officer I have delegated as my deputy for that purpose.

 

This situation cannot continue indefinitely, and with great regret I have concluded that this leaves the University with no option but to decline to register you as a student in the 2009/10 academic year which has just commenced.  I have asked the University Secretary to take the necessary action to ensure that you are not registered as a student, and to inform [your country’s] Cultural Counsellor and Director in London of our decision.”

 

The petitioner wrote to the Principal on 11 September 2009 disputing that decision. 

 

Further exchanges

[33]      On 6 October 2009 the University Secretary wrote to the petitioner on a number of points, including her three month interruption of studies.  He recorded that the pro-forma request for such interruption had been signed off by her Principal Supervisor, that she had subsequently referred to the request in certain emails.  He concluded by saying this: 

“I would also point out that the three month period has passed and that interruption of studies has no bearing on your subsequent suspension.”

 

[34]      The petitioner instructed solicitors to make representations on her behalf in respect of her suspension under the Disciplinary Code.  We have seen submissions made by them on the petitioner’s behalf in November 2009 and a response to those submissions by solicitors instructed by the University.  It is unnecessary to refer to the content of those submissions, save to note (a) that in their letter of 11 November 2009 written on behalf of the petitioner her solicitors asked the University to “produce the legal basis for their demand for medical evidence in relation to our client’s state of health”, and (b) that the letter from the University’s solicitors in reply did not address this point.

[35]      There was a long letter from the University to the petitioner dated 20 January 2010 setting out certain proposals for resolving the dispute and allowing the petitioner to return to the University to complete her PhD.  Putting the matter shortly, the offer to allow her to return was accepted by the petitioner but the terms were rejected.  On 2 February 2010 the VPED wrote to the petitioner again, setting out the University’s final response on those matters.  In the course of that letter the VPED referred to the petitioner’s suspension under the Disciplinary Code in these terms:

“You will be aware that the background to your suspension has been considered under the University's Code of Student Discipline.  You were suspended on 25^th June 2009 by the University Secretary acting as the Principal's duly authorised deputy under paragraph 5.1.7 of the Code.  The Principal formally notified you of the Secretary's authority in that respect.  You were given the opportunity to make representations so that the matter could be reviewed after 5 days in keeping with section 5.1.6 and 5.1.7.

 

The University Secretary in keeping with Section 5.1.9 has thereafter reviewed your suspension at monthly intervals.  Because you were suspended from study until the end of the 2008/9 academic year, you have not been registered as a student in the academic year which commenced in September 2009.  The Principal wrote on the 11^th of September 2009 to inform you that the University had no option but to decline to register you in the academic year 2009/2010 that had just commenced for the reasons given in the letter.”

 

This is important since it shows clearly that one of the reasons or justifications for the University declining to register the petitioner for the 2009/2010 academic year – perhaps not the only reason/ justification but one of them, and an important one at that – was the fact that the petitioner remained suspended under the Disciplinary Code.  This ties in with the view expressed by the University Secretary in the Memorandum of 6 August 2009 that if the petitioner remained suspended at the beginning of the new academic year he would not intend to permit the petitioner to re-register as a student.

[36]      The dispute about whether the petitioner should be allowed to re-enrol continued through 2010 until early to mid-2011.  An internal email in August 2010 shows that the University was considering excluding the petitioner permanently.  By this time she had purportedly been suspended under the Disciplinary Code for just over one year.  In April/ May 2011 the petitioner and her husband were in correspondence with the new University Secretary about the possibility of re-enrolment.  The petitioner pointed out how close she was to finishing her thesis and submitting it.  By letter dated 26 May 2011 the University Secretary refused that request.  The petitioner had not accepted the offers made in May 2010 within the time allowed for their acceptance and the offer had expired.  In response to a long letter from the petitioner dated 1 June 2011 the Principal confirmed that the University’s position remained that set out in the letter from the University Secretary of 26 May 2011.

[37]      That was not the end of the matter.  There was further discussion in correspondence in November 2011 about the possibility of the petitioner being allowed to re-enrol if she provided medical evidence showing that she was fit to return to her studies.  An independent psychiatric report was suggested, to be paid for by the University.  This too came to nothing.

 

The petitioner’s judicial review challenge

[38]      In her petition for judicial review, the petitioner makes 16 discrete challenges to actings or decisions of the University in relation to the matters set out above.  It is convenient to group together those challenges under the following heads:

(i)         reduction of the request made on 13 May 2009 for a three month interruption of studies beginning in May 2009, and the grant of that request;

(ii)        reduction of her suspension under the Disciplinary Code notified to her in the letter of 25 June 2009, and of the periodic reviews and continuations of that suspension thereafter;

 

(iii)       reduction of the decision, notified to her by letter of 11 September 2009, to decline to register her as a student in the 2009/2010 academic year, and of subsequent decisions thereafter declining to register her for that and subsequent years and/or imposing conditions for her entitlement to be registered;

 

The decisions referred to at sub-paragraphs (i) and (ii) raise discrete points as to the construction of the University’s Rules and Regulations and Codes of practice.  So far as concerns of the other decisions and letters sought to be reduced, the petitioner’s main point was that the University had no power in the circumstances of the case to demand that she provide medical evidence before being allowed to return to the University to complete her studies.  Most of those individual decisions and letters sought to be reduced were decisions insisting upon the provision of such evidence – if there was no power to demand such evidence, then, so the petitioner argued, those decisions setting out the terms upon which she would be allowed back to complete her studies fell to be reduced.  These matters are best dealt with compendiously in the light of the discussion about the University’s Rules and Regulations and Codes of practice.

[39]      In addition, the petitioner seeks certain other specific relief relating to documents allegedly kept by the University and/or to which she seeks access for the purposes of her studies.  We turn to consider these matters at the conclusion of this Opinion.

 

The Lord Ordinary’s Opinion

[40]      In his Opinion, the Lord Ordinary rejected each of these challenges.  As a preliminary matter, however, he raised a point not mentioned by either party in their initial submissions, to the effect that the Head of School had in fact acted to suspend the petitioner on 15 May 2009 not on disciplinary grounds but under the University’s mental health policy.  Having invited parties to lodge further written submissions on this point, he reached the conclusion that the Head of School had indeed suspended the petitioner on that date under the mental health policy and that, having done so, he (and the University taken as a whole) was entitled to insist that before the petitioner could be allowed to return to the University she must produce medical evidence that she was fit to resume her studies without causing disruption to others.  He took the view that his decision on this issue was determinative of the petition, rendering the petitioner’s challenges to the other decisions made by the University at best academic.  However, he went on to consider the other challenges and rejected them for reasons set out in his Opinion.

[41]      Rather than set out the submissions of each party seriatim and then consider the reasoning of the Lord Ordinary on each point, it is convenient to deal with the submissions and with the Lord Ordinary’s reasoning in connection with issues as they arise for decision. 

 

Discussion and decision

[42]      We propose to deal with this matter by considering and reaching a decision on what we understand to be the critical points in dispute and then assessing whether and, if so, how the decision on those points affect the other matters complained of.  We shall then turn to the question of what relief, if any, should be granted.  We should note that a number of statutory provisions and decided cases were cited to us in argument.  We have taken them fully into account, but in view of the decisions we have reached we do not need to refer to many of them and certainly not in any great detail.

 

Interruption of studies

[43]      The petitioner challenges the decision by the CPGSC to grant an authorised interruption of study for three months with effect from 1 May 2009.  The grant of that interruption of study was ostensibly favourable to the petitioner, giving her time off from her study and extending by three months the time by which she was required to present her thesis.  It may, therefore, be thought somewhat odd that the petitioner challenges that decision.  However we understand her to do so because of a concern that an authorised interruption of study, particularly if granted on the basis of medical evidence of stress, might give the University authorities the power to impose conditions upon her return to her study, in this case a condition that before returning she produce medical evidence of her fitness to resume her studies without unduly disrupting the work of others.

[44]      The grounds upon which she challenges the decision to grant her an authorised interruption of study are, put short, that the application was made without her consent and/or against her will; that the form on which it was made was not signed by her (but was signed by others pretending to be her); and that, in any event, she withdrew her request for an interruption of study before the application was granted.

[45]      The Lord Ordinary rejected the petitioner’s arguments on this point.  He dealt with the matter at paragraphs [69]-[75] of his Opinion.  We do not feel it necessary to set out his reasoning in detail largely because it is similar to ours.

[46]      Authorised interruptions to study may be granted to students who for various reasons largely beyond their control are unable to work on their thesis for a significant period of time.  “Working Guidelines” for the grant of such authorised interruptions have been put in place by the University.  They provide, so far as material, as follows:

“Working Guidelines for the granting of Authorised interruption of Study or extension to study permitted under the Postgraduate Regulations

 

Authorised interruptions to study (previously known as suspension of study) may be granted for stated reasons such as medical grounds, registration of the candidate for another degree, diploma or professional qualification or for other good cause.  It should be noted however that the Senatus Researcher Experience Committee places considerable emphasis on the prompt completion of the thesis within the prescribed and maximum periods set by the University.  Authorised interruptions to study can only be authorised by the College committee with responsibility of postgraduate research matters.  A student’s period of study may also be extended and extensions can only be authorised by the College committee with responsibility for postgraduate research matters.”

 

The College committee with responsibility of/for postgraduate research matters is the CPGSC.  This is the only body which has the power to grant Authorised interruptions and/or extensions – neither the Principal, the Head of College nor the Head of School has any such power.  It should be noted that an interruption to study was previously known as “suspension of study”.  As already pointed out, the term “suspension” or “suspended” is sometimes used in the correspondence when the writer clearly intends to refer to “interruption” or “interrupted”.  This is understandable where one expression is replaced by another; but it is apt to cause confusion unless account is taken of the fact that there has been this change of terminology.

[47]      The Working Guidelines continue with a section somewhat misleadingly headed “Definitions”.  In fact this “Definitions” section sets out the whole substance of the matter.  It provides, so far as material, as follows:

“Definitions

 

Authorised interruption of study

 

An interruption of study concession is applicable where a student is unable to work on the thesis for a significant period of time due to circumstances that are largely beyond their own control.  Periods of interruption do not count towards the student’s total permitted period of study.

 

These circumstances can include, among others,

• Medical and health problems
• Personal and family problems
• Bereavement
• Problems experienced because of failure of University equipment or lack of access to equipment for good reasons that are outwith the control of the student
• Problems experienced because of deficiencies in the provision of supervision or facilities  …

 

…

 

All applications for interruption must be supported by the supervisor, agreed by the School Postgraduate Director and be supported by documentation where appropriate, for example medical or hospital certificates.  …

 

Retrospective interruptions can be applied for where the reasons for late disclosure or applications are for good reason.

 

The schools should note that second or further applications for interruptions for a student will be subjected to greater scrutiny and a higher level of supporting documentation will be required.  The committee reserves the right to refuse to grant continuous applications.  On receiving the application the CPGSC will consider each individual case on its merits within the context of the University’s regulations.  The committee has the authority to reject an application or to impose conditions as it deems appropriate …

 

Extension to maximum period of study

 

An extension to a student’s period of study is exceptional and a strong case is required before an extension will be considered.  The Principal Supervisor is expected to submit a request prior to the completion of the maximum period of study or as soon as the problem has been disclosed or discussed.  …”

 

The Working Guidelines go on to make detailed provision about the circumstances in which such an extension may be granted, about retrospective requests and about the required support from supervisors and/or the School Postgraduate Director.  We do not set these detailed provisions out here since the relevant part of the Working Guidelines is that dealing with authorised interruption of study.

[48]      A number of points should be noted.  The first is that the circumstances in which an interruption of study may be granted are wide-ranging and admit of some flexibility.  What is required is that the student is unable to work on the thesis for a significant period of time due to circumstances that are “largely beyond their own control”.  In the present case there is no dispute that the circumstances in which the petitioner found herself in May 2009 were capable of amounting to circumstances largely beyond her own control.  Ultimately that matter is for the CPGSC to decide, but in this case the CPGSC clearly did decide that the circumstances presented to it fell within this definition, otherwise they could not have granted the request. 

[49]      The second point is that, as the text makes clear, an interruption of study may be applied for retrospectively.  This in fact happened in the case of the interruption granted in April 2009 covering a 12 month period from 1 March 2008 until 28 February 2009.  It happened in part in the interruption granted on 1 June 2009 for a three month period from 1 May 2009 to 31 July 2009 (the application was not initially made until at the earliest 13 May 2009). 

[50]      The third point is that, as the Lord Ordinary noted at paragraph [73], any interruption to study had to be the subject of an application by or on behalf of the student, but no particular form was specified in the Working Guidelines for such application.  Clearly a standard form had been developed for ease of use, but this was not a form prescribed by the Working Guidelines.  All that the Working Guidelines stipulate is that the application for interruption must be (i) supported by the supervisor, (ii) agreed by the School Postgraduate Director and (iii) supported by documentation, such as medical or hospital certificates, “where appropriate”.  Nowhere do they stipulate that the form must be completed and signed by the student.  Indeed, any such a requirement would potentially be unworkable, for example in a case where the student had suffered a serious accident or had been detained abroad.

[51]      The form on which the application for an interruption of study was made in the present case is set out in full at paragraph [19] of the Opinion of the Lord Ordinary.  It bears the date 13 May 2009 in manuscript and is date-stamped as having been received on 20 May 2009 (though, as the Lord Ordinary points out, it is not clear where or by whom it was received on that date, and the signature within the date-stamp is dated 25 May 2009).  It names the petitioner as the student in respect of whom the application is made and gives the name of the Principal Supervisor.  An extension of three months with effect from 8 May 2009 is sought.  It notes that a medical note “outlining stress” covering the first two weeks of the three month period has been submitted.  There is then a box for relevant signatures.  Against the word “Student” the name of the petitioner has been written with the words “on leave” in parenthesis against her name.  There is no signature or pretended signature for the student.  On the next line, against the words “Principal Supervisor” there is written the name of the petitioner’s Principal Supervisor followed by his signature.  Underneath that there is a statement by the Chair of the School Postgraduate Studies Committee that he supports the application for an interruption of study, followed by his signature.  Finally there is a statement that the application for an interruption of study “is/is not approved”, followed by a signature from the secretary of the CPGSC and the words “special circumstances” in parenthesis.  Neither the “is” nor the “is not” is deleted on the form, but it is clear from the letter of 1 June 2009 from the CPGSC granting the interruption that the application must have been approved.

[52]      The petitioner submits that the application for an interruption of study was invalid or defective because the form was not signed by her and/or because it was signed by her Principal Supervisor pretending that it was her signature.  There is nothing in this point.  As we have already made clear, the form did not require to be signed by the student applying for the interruption of study.  Nor did this form purport to be signed by her.  It is made clear on the form that she was “on leave”.  The signature by her Principal Supervisor was a signature in his own name, placed against his name and description on the form signifying that he supported the application. 

[53]      The petitioner argued that the application was made without her authority and against her wishes.  We reject this argument.  It is clear that the form was prepared and submitted, probably on 13 May 2009, on the basis that the petitioner had intimated, in her email to the Head of Department of 12 May 2009, that her GP had signed her off and she was not expecting to be back for 3 to 6 months.  There can be no doubt that the petitioner was aware that an application for interruption of study was being, or was to be, made on her behalf.  The Head of School had written to her on 12 May 2009, probably in response to her email to the Head of Department of that date, assuring her that her period of study could be “suspended” until she felt well enough to return to her work – in the context of the surrounding correspondence, it is clear that that was intended as a reference to her period of study being “interrupted”.  Further, an email of 11 May 2009 to the petitioner from the Representation Manager of the University’s Student Association makes it clear that an application for interruption of study was being considered as early as 8 May 2009; and the petitioner’s own email to the Head of College on 14 May 2009 expressly sought to change the basis upon which an interruption of study was sought, thereby recognising that an application had been made on her behalf and with her authority.  On 5 June 2009 the petitioner emailed the CPGSC noting that she had been granted an interruption of study, requesting to be told that her request to resume her studies had been implemented and pointing out that she should be allowed to do so given that the interruption of study was granted “on my personal request”.  In those circumstances it is clear that she knew and approved of the application being made on her behalf.

[54]      Finally, on this point, the petitioner complains that by the time the application was granted she had withdrawn her request and had intimated that she was back to normal physical functioning.  It is true that by email of 20 May 2009 to the Head of College, copied to the Head of Department, she said that after a week off she was back to normal physical functioning.  However, by this time the application for an interruption of study had already been made and, for aught known, was before the CPGSC for consideration.  There is no material to suggest that the email of 20 May 2009 was brought to the attention of the CPGSC or that any specific communication was made to it seeking to withdraw the application.  In those circumstances a change of mind on the part of the petitioner cannot affect the validity of the process by which the application was granted.

[55]      Accordingly, this part of the petitioner’s case fails.  We should, however, observe that in our view this point is in any event academic.  As the Lord Ordinary points out in his Opinion, any interruption of study granted by the CPGSC was for the benefit of the petitioner and did not adversely affect her position.  It resulted in a three month extension to the date by which her thesis had to be presented.  Quite apart from that, the interruption of study came to an end on 31 July 2009.  This was noted in the University’s letter of 6 October 2009 where the University Secretary made it clear that since it had come to an end after the three months the interruption of studies had no bearing on the petitioner’s subsequent suspension

 

Decision under Mental Health Code?

[56]      The Lord Ordinary also took the view, though for different reasons, that the effectiveness or otherwise of the grant of the application for an interruption of study was academic.  He was of the opinion that by the time the CPGSC granted an interruption of study, the petitioner had been suspended from her studies by her Head of College, a decision taken in terms of the Student Mental Health Code of Practice (“the Mental Health Code”), and it was that suspension which entitled the University to insist that she produce a medical certificate before her readmission could be considered by the University.  He relied upon the letter dated 15 May 2009 from the Head of College to the petitioner in which, having enquired about her health and well-being, and having asked the petitioner to share his letter with her GP, he concluded in these terms:

“For the moment, your complaints process is suspended, in the same way as your PhD studies, until your health improves.”

 

As the Lord Ordinary makes clear, that letter of 15 May 2009 was not challenged by the petitioner nor was it founded upon by the University as a decision giving it the right to impose a condition that the petitioner provide medical evidence before being considered for a return to her studies.  After taking the case to avizandum, the Lord Ordinary issued a brief Note, inviting submissions by the parties on this question (see paragraph [76] of the Lord Ordinary’s Opinion):

“Much of the dispute between the parties to this action centres on the question whether the University had power to make the petitioner’s return to her studies conditional on her providing evidence from her doctor that she was fit to do so.  What impact, if any, does the exchange of the 15 May letter to the petitioner, and her response timed at 11:24 have on the petitioner’s application for judicial review?  Reference should be made to the University’s Code of Practice on Student Mental Health …”

 

[57]      In her written submissions in response to that invitation, the petitioner argued that the reference in that letter of 15 May 2009 to her studies being “suspended” was based on her stated intention to apply for interruption of studies with a change of reason.  It will be recalled that the application for interruption of studies bears the date 13 May 2009 and the petitioner emailed with a request to change the reason for that application on 14 May 2009, repeated on 15 May 2009.  The petitioner went on to say that if the letter of 15 May 2009 amounted to a “new decision”, i.e. a decision by the Head of College to suspend her under the Mental Health Code, that decision should have been recorded and/or relied on in terms in the University’s pleadings.  Further, the petitioner argued that the advice given by the Head of Academic Affairs in the Case Advisory on 23 June 2009 made it clear that as at that date, some five or six weeks after the letter from the Head of College of 15 May 2009, there had not been any decision to suspend her under the Mental Health Code.  The petitioner also presented other arguments which are summarised in the Lord Ordinary’s Opinion at paragraphs [77]-[78].

[58]      In its submissions in response to the question posed by the Lord Ordinary, which submissions are summarised at paragraphs [79]-[81] of his Opinion, the University did not put forward any argument to the effect that the letter of 15 May 2009 represented a decision by the Head of College to suspend the petitioner under the Mental Health Code.  Its argument was that the petitioner’s request for interruption of studies made on 12 May 2009 was granted on the same day by the Head of College when he wrote to the petitioner saying that she should “rest assured that your period of study can be suspended until such time as you feel well enough to return to your work.”  In light of that, the argument for the University was that in the exchange of correspondence on 15 May 2009 both the Head of College and the petitioner “were referring to the suspension of studies that the University had decided to grant three days before that”.  The University went on to make a number of points, viz: that the Mental Health Code and the Disciplinary Code were not mutually exclusive; that the initial “suspension” of the petitioner’s studies was at her request; if there were any doubt about that, then her consent was not required under the Mental Health Code because she was in the College of Medicine; that after the decision taken on 25 June 2009 her suspension was under the Disciplinary Code, but still on the grounds of health as well as email abuse; and that the Mental Health Code entitled the University in such circumstances to require medical certification before allowing the petitioner to return to her studies.  The submissions are set out in more detail in the Lord Ordinary’s Opinion in the paragraphs mentioned above.

[59]      The Lord Ordinary held that the University’s argument that it had granted the petitioners application for interruption of studies on 12 May 2009 was wrong.  He was plainly correct on this matter.  The letter from the Head of College on that date was simply reassuring the petitioner that there would be no difficulty in her studies being “suspended”.  The language used in the letter is the language of reassurance, not that of decision.  We have already said that, in the context, it is perfectly clear that the Head of College was simply using the old terminology and was in fact reassuring the petitioner that there would be no difficulty in her studies being “interrupted” in accordance with her request.  However, he could not make the decision to grant her request for an interruption of study.  As the Lord Ordinary points out, that request could only be granted by the CPGSC.  No doubt the Head of College would be able to predict how an application of that sort would be regarded by the CPGSC, and therefore was able to give the petitioner reassurance that there would be no difficulty.  It is probable, as the Lord Ordinary suggests (at paragraph [82] of his Opinion), that when the petitioner asked her Head of Department and her Head of College to notify “the whole department and school” of the reason for her absence, and the Head of College undertook in his letter to the petitioner of 12 May 2009 to inform the Head of School and the petitioner’s Principal Supervisor that she was currently on sick leave, the Head of College requested the petitioner’s Principal Supervisor to assemble the formal application to the CPGSC for an interruption of study for the petitioner, and at the same time gave the petitioner the assurance that there would be no difficulty in that application being granted.

[60]      Against this background, in paragraphs [83]-[96] of his Opinion, the Lord Ordinary embarked upon a detailed analysis of the Mental Health Code and the correspondence between the petitioner and the University, and reached the conclusion that in his letter of 15 May 2009 the Head of College was indeed communicating to the petitioner that her PhD studies were suspended under the Mental Health Code.  In those circumstances he was satisfied that the University had the power to insist as a condition for the petitioner returning to resume her studies that she provide medical evidence that she was fit to do so without causing disruption to others.  It followed, in his view, that the petitioner’s complaint about the application for interruption of study, which we have already dealt with, fell away. 

[61]      The main passage in which the Lord Ordinary sets out his conclusion that the letter of 15 May 2009 did communicate the petitioner’s suspension from her studies under the Mental Health Code is at paragraph [90] of his Opinion.  We shall look at his reasoning in this paragraph in more detail.  However we should first set out the relevant provisions of the Mental Health Code as they apply to this case.

[62]      As the “Introduction” makes clear, the Code of Practice on Student Mental Health

“… sets out guidance for helping, supporting, or referring students who may have mental health difficulties or illness at [the University].  It should be read in conjunction with the leaflet ‘Helping Distressed Students, a Guide for University staff’, which takes staff through a step by step process and approach both if the situation is urgent or if it does not require immediate action.  It also provides a brief guide to a range of University support services that can also help students with mental ill health.

 

This guidance can be found at:  [URL provided]”

 

We were not taken to the “Helping Distressed Students” guide, but it is clear from the Introduction that the primary purpose of the Mental Health Code is to provide guidance to staff at the University as to the best ways of providing help and support to students suffering from mental health difficulties or illnesses.

[63]      The Mental Health Code then has a number of headings.  Under the heading “2. Context”, the Code explains how mental health difficulties may occur and emphasises that the University is committed to encouraging students with mental health difficulties to make those difficulties known to the University.  Under the heading “3. Confidentiality”, the Code emphasises the duty on the University to ensure that appropriate support mechanisms are put in place and makes it clear that, as a result, absolute confidentiality cannot always be guaranteed.  The most important heading for present purposes is “4. Roles and responsibilities”.  This provides, so far as material, as follows:

“4        Roles and responsibilities

 

The aim of the University’s policy is to assist staff to support students …

 

In general, students should be involved in all decisions affecting their welfare; however, this may not always be possible because of the nature and degree of their illness.  The University will endeavour to postpone any decision about the student’s academic study until he or she is able to participate in an informed way in discussions.  In extreme circumstances, however, the University reserves the right compulsorily to suspend a student without his or her permission under [the Disciplinary Code]: [URL provided]

 

4.1       Initial concerns about a student’s mental health

 

If a member of staff is concerned about a student’s mental health, the student should in the first instance be advised to seek help from any of the support services listed below depending on the nature of the concern.

 

• The student’s own GP or the University Health Service [URL provided]
• …”

 

The Mental Health Code goes on to discuss “4.2 On-going concerns about a student’s mental health”, “4.3 Emergency situations” and “4.4 Support for members of staff”. 

[64]      Appendix 1 to the Mental Health Code provides, so far as material, as follows:

“Action in the Longer Term

 

Longer term measures to deal with any student who displays disruptive behaviour which may be caused by mental illness should be based upon the results of medical assessment and should be consistent with the interests of the student concerned and those of the University community as a whole.

 

(i)         Remaining enrolled at the University with no conditions”

 

The University may take no action.  The College Office should seek advice from the student’s GP, Director of Studies or Postgraduate Supervisor and any other appropriate person.  The College Office may then confirm that the student is permitted to remain enrolled at the University with no treatment.  This decision should be reported to the Registry …

 

(ii)        Remaining enrolled at the University subject to conditions

 

The University may require the student to meet certain conditions if he/she is to remain enrolled.  It may require the student to seek appropriate medical advice and it may, alternatively or in addition, impose conditions with regard to the student’s behaviour over a specified period of time.  Such conditions here and in 4(iii) below could include, for example, stopping disrupting classes, permission to sit examinations only if special accommodation arrangements are available or a requirement that an individual graduate in absentia.

 

Failure to comply with the conditions may result in the student’s case being reported to and reviewed by the Undergraduate or Postgraduate Dean, or by the nominee of the Head of College.  Continued failure to comply with the conditions could result in action being taken under the Code of Student Discipline against behaviour defined as misconduct under the General Statement on Discipline.  Such action would be taken only where it was necessary to stop serious disruption to staff and students, or if there was any threat to the physical safety of the ill student, other students, or staff.

 

(iii)       Remaining enrolled at the University subject to conditions but with eligibility for University-owned residential accommodation reviewed

 

…

 

(iv)       Suspension of study

 

A student choosing to suspend studies will be suspended from the University under the normal University policy governing suspension (for postgraduate students) or leave of absence (for undergraduate students).  This is a temporary arrangement, and will be for a fixed period of time.  It assumes that the student is away from the University.  The right to use [University] computing and library facilities will be temporarily withdrawn.  The initial period of suspension/leave of absence will normally be to the end of the academic year.  There will be the potential for renewal to a maximum period of two years, after which, if the student is unable to resume studies, he/she will be required to withdraw from the University or will be formally excluded from further study in the School.

 

With certain exceptions, no student may be suspended from the University without his/her consent unless under the provisions of the Code of Discipline.  The exceptions are students in the College of Medicine and Veterinary Medicine and [certain other schools].  Such students, if they display disruptive behaviour which may be caused by mental health, can be suspended from the University by the relevant Head of College with or without consent.

 

On receiving notification from the College Office that a student has suspended studies, the University normally has a responsibility to report this to sponsors.  …  For postgraduate students, the information on a suspension should be passed on by the College Office.  …

 

(v)        Emergency removal of a student from the University

 

…

 

Re-admission following suspension of study or leave of absence

 

When a student has suspended studies on medical grounds, voluntarily or involuntarily, the College will require medical certification before re-admission of the student can be considered by the University.  The College will need to be satisfied that the mental illness has been brought under control.

 

Colleges will not be able to guarantee that a particular course will still be available, although every effort will be made to help a recovered student and to offer a suitable alternative course.  The decision to readmit the student will be taken by the College, usually by the Dean of Undergraduate or Postgraduate Studies or their equivalents.  …”

 

[65]      A number of points call for comment.  We mention them in no particular order of importance.  It is clear that the possible measures listed in Appendix 1, are measures which may be taken by the University.  No individual is identified as being the person entitled or required to take such measures, but it may be assumed that the Head of College is one such person.  The first three possible measures identified in Appendix 1 all involve the student remaining enrolled at the University either with no conditions or subject to conditions which may or may not relate to eligibility for University-owned residential accommodation.  The fourth possible measure is “suspension of study”.  With certain exceptions, a student cannot be suspended without his or her consent except under the Disciplinary Code.  One of those exceptions, however, is where the student is studying within the CMVM – there are obvious reasons in such cases for the University authorities being entitled to suspend the student from the University against his or her wishes.  The fifth possible measure is emergency removal of the student from the University.  In all such cases it is clear that a decision has to be taken and, once taken, is to be notified to the student in terms which make it clear to the student precisely what has been decided and what are its consequences.  If the decision is made to suspend the student, then further steps have to be taken, such as notifying the relevant bodies or departments within the University that the student’s library and computer user rights have been withdrawn.  Suspension under the Mental Health Code is a different thing from interruption of study under the Working Guidelines referred to above.  Suspension may be imposed on a student within the CMVM, whereas an interruption of study has to be the subject of an application by or on behalf of the student.  A decision about suspension may be taken by the University authorities, such as the Head of College, whereas an interruption of study can only be granted by the CPGSC.  The distinction between the two processes is emphasised by the change of terminology in the Working Guidelines from “suspension” of study to “interruption” of study.  Both the Working Guidelines and the Mental Health Code were revised or updated in January 2009.  It may be, we do not know, that it was at that time that the terminology in the Working Guidelines was changed from “suspension” to “interruption”.  But whenever the change was made, the distinction is an important one; and it is clear from the correspondence in this case that the terminology was not always used with as much care and precision as it ought to have been.

[66]      One thing is abundantly clear from the Mental Health Code, and that is that in the event of a student suspending studies on medical grounds, whether voluntarily or involuntarily, the University will require medical certification before readmission of the student can be considered.  By contrast, the Working Guidelines for the granting of authorised interruption of study do not give any power to the University to require the provision of medical certification before the resumption of studies.  This is important.  It demonstrates the importance of knowing whether or not a student has indeed been suspended and, if so, whether that suspension was on medical grounds.  It reinforces the requirement for clarity both in making the decision and in communicating it to the student.  Only if the decision is communicated clearly will the student, who has online access to all the relevant Regulations, Codes and Guidance, be in a position to know where he or she stands and what are the respective rights as between himself or herself on the one hand and the University on the other.

[67]      Though neither party relied on it, we should mention that there is a further sub-heading within Appendix 1 to the Mental Health Code entitled “Withdrawal of students”.  “Withdrawal” is not a term used elsewhere in the Mental Health Code, but we take it to be a reference to a situation where a student has been suspended (in the case of post graduate students) or has been granted leave of absence (in the case of undergraduates) and has therefore “withdrawn” for a period from the University.  We do not need to quote any part of it verbatim, but we should note that it provides for certain steps to be taken in “processing” all withdrawals due to mental illness and/or disruptive emotional behaviour.  The steps include a requirement that withdrawals be processed by the College, who should inform the Registry, the Computing Services and the Library in order to cancel the student’s user rights, and should receive the student’s University card.  It is noted that the student’s record will show that the student has withdrawn from studies “for health reasons”.  This is of some importance, since it shows that the process of “withdrawal”, i.e. “suspension” or “leave of absence”, under the Mental Health Code, is, as one would expect, a formal process in which the fact of withdrawal is notified to and processed by the College which then informs the Registry, the Computing Services and the Library so that they may take the appropriate action to cancel the student’s user rights.  The student will be expected to return his or her University card. 

[68]      In light of the above, we cannot accept the conclusion of the Lord Ordinary that in his letter of 15 May 2009 the Head of College was communicating a decision to suspend the petitioner’s studies under the Mental Health Code.  The letter did not bear to convey any such decision.  It is headed “PERSONAL & STRICTLY CONFIDENTIAL”, a heading which is inappropriate if the letter was intended to intimate to the petitioner a formal decision taken by the University under the Mental Health Code, a decision which would have to be notified to others.  It does not bear to have been copied to any other College or University bodies.  It is written in the context of communication from the petitioner about interrupting her studies and, in particular, after receipt by the Head of College of an email from the petitioner seeking to change the reasons for that interruption from health grounds or “stress” to having to cope with an intolerable work environment.  A construction of the letter which suggests that the Head of College was suspending her under the Mental Health Code would require it to be assumed that, sub silentio, the Head of College was deliberately ignoring that previous correspondence; and it would render meaningless the words “your complaints process is suspended, in the same way as your PhD studies”, since the only way in which suspension of the petitioner’s PhD studies had to date even been contemplated – though the process had not yet been completed – was by the interruption of studies request which had been submitted or was in the process of being submitted.

[69]      We should add too that we have seen nothing in the material laid before us to indicate that following upon the letter of 15 May 2009 there was any notification given to the College that the petitioner had been suspended under the Mental Health Code, or that the College processed her withdrawal or notified the Registry, the Computing Services or the Library of the fact so that they could cancel her user rights.  There is nothing to suggest that at that time the petitioner was requested to return her University card.  In short, the letter of 15 May 2009 bears none of the hallmarks of a notification of a decision to suspend the petitioner under the Mental Health Code, nor does it seem to have triggered the sort of action within the University that would have been expected had such a decision been taken. 

[70]      It is, in this context, particularly important to note that the Head of Academic Affairs seemed wholly unaware of any decision to suspend the petitioner under the Mental Health Code when she came to prepare her Case Advisory dated 23 June 2009.  At the beginning of that document she identified the problem that she was being asked to address.  That was: (i) that the College had serious concerns as to the petitioner’s mental well-being and had sufficient relevant medical opinion to consider it reasonable to act on the basis of her impaired mental health; (ii) that the petitioner was currently on an “interruption of studies”; and (iii) that the College had asked for guidance on how to exclude the petitioner from access to the University and email system until she could provide medical evidence that she was fit to resume her studies.  The first point shows that although the College had serious concerns and sufficient medical opinion, it did not think that it had already acted on the basis of her impaired mental health.  The second point shows that the petitioner was regarded as being on “interruption of studies”, rather than having been suspended under the Mental Health Code.  The third point shows that the College did not think that the petitioner had already been suspended under the Mental Health Code, since if she had been suspended under that Code she could and would automatically have been excluded from access to the University email system.  This document is wholly inconsistent with the idea that the letter of 15 May 2009 communicated a decision to suspend the petitioner under the Mental Health Code as from that date.

[71]      In paragraph [90] of his Opinion, the Lord Ordinary summarises his reasons for concluding that the letter of 15 May 2009 was a communication to the petitioner that her PhD studies were suspended as from that date.  He acknowledges that, if his construction of the letter is correct, then the Head of College suspended her knowing that she had departed from her wish that she should be granted an interruption of studies on the ground of ill-health.  He thought that the Head of College “cannot have been referring to the grant of her application for an authorised interruption of study, because that did not happen until sometime after 20 May”.  It is true that the authorised interruption of study did not happen, in the sense that it was not granted, until sometime after 20 May 2009, but the Head of College knew that an application had been made and had already given the petitioner reassurance that it would be approved.  The Lord Ordinary goes on to say that the only basis upon which the Head of College could purport to suspend the petitioner’s complaints process was if she was “suspended from the University” under the Mental Health Code.  That may be so on the proper construction of the various Codes and Regulations, but it cannot be assumed that the Head of College had these in mind at the time.  The context is all-important.  The Head of College had been engaged in correspondence dealing with a request for an authorised interruption of studies.  Why should he suddenly jump to the exercise of powers under the Mental Health Code without either specifically or by necessary inference referring to that Code?  In our opinion it is far from clear that the Head of College was intending to exercise powers under the Mental Health Code or that he regarded the petitioner as suspended from her studies on health grounds under that Code.  Nor is there any reason to think that the petitioner herself understood that the Head of College thought that her studies were suspended because of her mental health. 

[72]      For these reasons we conclude that the Lord Ordinary was in error in coming to the conclusion that by letter of 15 May 2009 the Head of College had suspended the petitioner under the Mental Health Code on grounds of ill-health.  It follows that he was in error in thinking that the University had power under that Code to impose conditions on the petitioner’s re-admission to the University.

 

Suspension under the Disciplinary Code

[73]      The next important matter challenged by the petitioner in these proceedings is her suspension from the University under the Code of Student Discipline (“the Disciplinary Code”) communicated to her by letter from the University Secretary dated 25 June 2009.  We have set out the terms of that letter earlier in this Opinion.  The petitioner contends that that letter, and the decision to suspend her under the Disciplinary Code, should be reduced.  Her grounds of challenge include the contention that the Principal was not entitled to authorise the University Secretary to act as his deputy in this regard.  She also challenges the procedure adopted both in terms of its compliance with the detailed provisions of the Disciplinary Code and in terms of Human Rights legislation.  We propose first to consider the propriety of the suspension in terms of the detailed provisions of the Disciplinary Code.

[74]      The University policy on student discipline comes in the form of a “General Statement on Student Discipline” and a “Code of Student Discipline”.  We shall refer to these in turn as “the General Statement” and “the Disciplinary Code”.  It is made clear that the General Statement is not part of the Disciplinary Code.  The last revision placed before us took effect from 1 September 2008.

[75]      The General Statement provides a statement as to the purpose of University discipline and its relationship to the criminal law.  We need not dwell on any of that for present purposes.  It then goes on to set out what it describes as “The Legal Basis of Jurisdiction”.  It is sufficient in this connection to note that the effect of the various Universities (Scotland) Acts of 1858, 1889 and 1966 has been to place the disciplinary jurisdiction of the University on a statutory basis, whereas formerly it relied upon its inherent power to regulate the conduct of its members.  Primary responsibility for discipline is vested in the Senatus while appellate functions are vested in the (University) Court.  The 1966 Act envisages the laying down of a code of procedure to be followed in more serious cases and empowers the (University) Court, by resolution, on the recommendation of the Senatus, to prescribe the procedure to be followed in the case of alleged breaches of discipline within the University in cases where the alleged breach is one which might be punished by expulsion or rustication.  The Disciplinary Code therefore has a quasi-statutory basis – it contains rules and procedure which must be followed.

[76]      Under the heading “Disciplinary Offences”, the Statement makes it clear that the Disciplinary Code is concerned solely with the machinery by which the system of discipline will be administered and with the rules of procedure which the various disciplinary authorities are to observe.  It is not concerned to define what amounts to misconduct which might be the subject of disciplinary proceedings.  It notes that detailed regulations governing general misconduct, as specified in the General Disciplinary Regulations, University examinations, libraries, the use of computing facilities, and so on, are published separately and that breaches of any of those regulations amounting to misconduct fall to be dealt with under the Disciplinary Code.  It gives examples of what it describes as “the essence of misconduct under the above regulations”, which include: the destruction of, or improper interference with, the academic, administrative, sporting, social or other activities of the University, whether on University premises or elsewhere; the obstruction of or improper interference with the functions, duties or activities of any student, member of staff or other employees of the University; violent, indecent, disorderly, threatening or offensive behaviour or language, whether expressed orally, in writing or electronically; breach of any Code or University rule or regulation (a list of which is appended to the General Statement, and includes Computing Regulations) which provides for breaches to constitute misconduct under the Disciplinary Code; misuse or unauthorised use of University premises or items of property, including computer misuse; and, without prejudice to the right to fair and justified comment and criticism, behaviour which brings the University into disrepute.

[77]      The Code of Student Discipline itself is divided into two Parts.  Part I is concerned with “Machinery”, identifying the “Standing Commission on Discipline”, listing the “Authorised Officers” and their powers, and describing the composition, functions and powers of the “Discipline Committee”.  We need refer only to two aspects of this. 

[78]      First, the list of Authorised Officers is a list of officers of the University who are authorised to exercise “summary jurisdiction in disciplinary matters”.  They include the Head of Colleges as well as the University Secretary and the Vice-Principal.  Their powers to impose penalties are set out in section 2.2, which provides as follows:

“2.2      Powers to impose penalties

 

In the exercise of their summary jurisdiction, the Authorised Officers may not impose penalties which exceed the penalties prescribed in the appropriate regulations.

 

…

 

In the absence of specific regulation Authorised Officers may impose a fine not exceeding such amount as may be prescribed from time to time by the Standing Commission on Discipline, a reprimand, a suspension of privileges for a period not exceeding one semester (which may … in relation to computing offences include suspension from all computing facilities), or a requirement to make good the cost in whole or in part of any damage caused, or any or all of these.”

 

[79]      Second, so far as concerns the Discipline Committee, which is given the function of exercising the disciplinary jurisdiction of the Senatus both (i) in cases of appeal from the summary decisions of Authorised Officers and (ii) as a tribunal of first instance in cases of discipline brought to it in accordance with section 5.1 of the Disciplinary Code, its power to impose penalties is set out in section 3.3 in the following terms:

“3.3      Powers to impose penalties

 

The penalties which may be imposed by the Discipline Committee in exercising its original jurisdiction shall be at the discretion of the Discipline Committee and may include reprimand, a fine not exceeding such amount as may be prescribed from time to time by the Standing Commission on Discipline, suspension from academic or other privileges for a stated period (which may, in relation to library offences, include suspension from the University Library), rustication, or expulsion from the University as well as requirement to make good any damage done in whole or in part.  …”

 

[80]      Part II of the Disciplinary Code is concerned with Procedure.  Section 4 deals with “Summary Cases” while section 5 deals with “Serious Cases”.  We are mainly concerned here with section 5, but it is useful to look briefly at the terms of section 4.  This provides, so far as material, as follows:

“4        Summary Cases

 

4.1       Before Authorised Officers

 

4.1.1     If, in the opinion of the Authorised Officer, the circumstances of the case appear to warrant immediate action in order to minimise the harm resulting from the conduct in question, or where separately published University regulations allow immediate action of this kind, he or she may act accordingly.  In all other cases of alleged misconduct as defined in the General Statement, the Authorised Officer shall inform the defender in writing of the details of the alleged offence and shall ask the defender whether he or she accepts the summary jurisdiction of the Authorised Officer or whether he or she elects to have his or her case heard by the Discipline Committee.  If the defender elects to have his or her case heard by the Discipline Committee, the case shall be heard in accordance with the procedure contained in Section 5.1.”

 

[81]      Section 5 of the Disciplinary Code, which deals with Serious Cases, requires more detailed attention.  It provides, so far as material, as follows:

“5.1      Before Discipline Committee

 

5.1.1     In any case, where, in the opinion of an Authorised Officer, the gravity of an alleged misconduct appears to warrant it, or where for any other reason he or she considers this course desirable, the Authorised Officer shall refer the case to the Principal.  The Principal (or his or her deputy) may:

 

(a)        authorise proceedings to be brought before the Discipline Committee, or

 

(b)       request the Authorised Officer to deal with the case, taking into account such advice as the Principal may offer, or

 

(c)        where the student elects to have his or her case heard before the Discipline Committee in accordance with Section 4.1, the Authorised Officer shall similarly report the matter to the Principal and the Principal shall decide that no proceedings shall be taken or shall authorise proceedings to be brought before the Discipline Committee

 

5.1.2     The Principal (or his or her deputy) may suspend or exclude any student who is the subject of a complaint of misconduct or against whom a criminal charge is pending or who is the subject of police investigation, pending the disciplinary hearing or the trial.

 

1. Suspension involves a total prohibition on attendance at or access to the University and on any participation in University activities, but it may be subject to qualification …

    

2. A student who is suspended will not be allowed to graduate.

    

3. Exclusion involves selective restriction on attendance at or access to the University or prohibition on exercising the functions or duties of any office or committee membership in the University or the Students’ Union, the exact details to be specified in writing.

 

5.1.3     Suspension should be used only where exclusion from specified activities or facilities would be inadequate.

 

5.1.4     …

 

5.1.5     Suspension or exclusion pending a hearing will not be used as a penalty.  The power to suspend or exclude under this provision is to protect the members of the University community in general or a particular member or members all members of the general public.  The power shall be used only where the Principal (or his or her deputy) is of the opinion that it is urgent and necessary to take such action.  Written reasons for the decision shall be recorded and made available to the student.

 

5.1.6     No student shall be suspended or excluded unless he or she has been given an opportunity to make representations in person to the Principal (or his or her deputy).  Where for any reason it appears to the Principal that it is not possible for the student to attend in person, he or she shall be entitled to make written representations.

 

5.1.7     In cases of greater urgency, the Principal (or his or her deputy) shall be empowered to suspend a student with immediate effect, provided that the opportunities mentioned in para 5.1.6 are given and the matter reviewed within five days.

 

5.1.8     A decision to suspend, or exclude from academic activities associated with the student’s course of study (other than access to the Library), shall be subject to review, at the request of the student, where it has continued for four weeks.  Such a review will not involve a hearing or submissions made in person, but the student shall be entitled to submit written representations.  The review will be conducted by the Principal where the decision to suspend or exclude has been made by someone else, and by three members of the Court (including at least one academic member and one lay member) where the decision has been made by the Principal.

 

5.1.9     The Principal, or other person who took the original decision, shall review the suspension or exclusion every four weeks in the light of any developments and of any representations made by the student or anyone else on his or her behalf.

 

5.1.10   If the Principal authorises proceedings to be brought before the Discipline Committee, the Principal shall appoint a member of the University’s academic staff to act as prosecutor to prepare a concise specification of the charge against the defender, before the Discipline Committee.  …”

 

Section 5 goes on to specify in great detail precise procedural steps in connection with hearings before the Discipline Committee and any appeal from the Discipline Committee.  We do not need to set these out.

[82]      The overall scheme of the Disciplinary Code is not difficult to understand.  A complaint about alleged misconduct may be dealt with summarily by the Authorised Officer exercising his summary jurisdiction under section 4 of the Disciplinary Code; or it may be dealt with by the Discipline Committee as a Serious Case under section 5 of the Disciplinary Code.  Which route is taken depends upon the circumstances.  If the Authorised Officer considers that the gravity of the alleged misconduct appears to warrant it, he is required to refer the case to the Principal who (either in person or through a deputy) may either authorise proceedings to be brought before the Discipline Committee or may request the Authorised Officer to deal with the case taking into account any advice that he may offer: see section 5.1.  In cases which are brought initially as Summary Cases, the Authorised Officer asks the student whether he or she accepts his summary jurisdiction or whether he or she elects to have his or her case heard by the Discipline Committee.  If the student does accept the Authorised Officer’s summary jurisdiction, the matter is dealt with in accordance with the procedure laid down in section 4.  If, however, the student elects to have his or her case heard by the Discipline Committee, then the Authorised Officer is required to report the matter to the Principal who, in terms of section 5.1, may either decide that no proceedings shall be taken or shall authorise proceedings to be brought before the Discipline Committee in terms of the procedure laid out in section 5.  In the present case the terms of the letter from the University Secretary dated 25 January 2009 made it clear that the complaint against the petitioner was being dealt with as a Serious Case under section 5.

[83]      Once the matter has been placed before the Discipline Committee, a number of steps have to be taken with a view to the matter being decided.  Section 5.1.10 requires the Principal, in such circumstances, to appoint a prosecutor to prepare a concise specification of the charge against the student (in this part of the section known as “the defender”).  In terms of section 5.1.12, the Discipline Committees serve on the defender a summons containing full specification of the charge prepared by the prosecutor.  Section 5.1.13 states that the defender is to be given written notice of his or her right to call witnesses and to legal representation.  We need not go through the whole range of procedural steps there set out.  The important point to note is that these parts of the section dealing with Serious Cases deal with matters relevant to the substantive proceedings against the student.

[84]      Quite separate are the provisions in sections 5.1.2 through to 5.1.9 which are concerned with interim measures which may be taken in defined circumstances “pending the disciplinary hearing or the trial” (see section 5.1.2), the reference to “the trial” being a reference, as we understand it, to a case where the alleged misconduct is also a criminal offence in respect of which criminal proceedings have been or are to be commenced leading to a trial.  The fact that these sections deal with interim measures pending a hearing is made clear also from the wording of section 5.1.5.  These powers of interim suspension or exclusion are ancillary to the substantive proceedings against the student.  They are not a replacement for them nor do they stand alone.  If there are no proceedings against the student then there is no power to suspend or exclude the student under these sections.  That is not to say that in cases of “great urgency” (see section 5.1.7) the Principal must wait until proceedings have actually been commenced against the student, though the process is easy enough and should not take long.  Clearly there may be situations where the Principal has to act immediately, and the interim action may be taken even though the substantive proceedings are not commenced until shortly thereafter.  But the substantive proceedings must be commenced, otherwise there is nothing to which these interim powers can attach; and the pretended exercise of the power of suspension or exclusion in the absence of actual or intended substantive proceedings against the student is invalid.

[85]      The letter from the University Secretary to the petitioner dated 25 June 2009 does not notify the petitioner that a formal complaint of misconduct is being made against her, though the substance of the letter refers not only to her health but also (a) to the fact that her distress and anxiety were now making it very difficult for other colleagues to work normally and (b) to the fact that she had been sending emails to members of the University making serious unfounded allegations about specific members of the academic staff with whom she worked (which might amount to a breach of the Computing Regulations).  These were no doubt matters which could have justified a formal complaint being pursued in terms of the Serious Case procedure under section 5, and, save for one point, for present purposes we do not lay too much emphasis on the fact that the letter does not in terms initiate a misconduct complaint or notify the petitioner that proceedings are to be brought against her before the Discipline Committee.  The one point is this: that had intimation been given to the petitioner that proceedings were to be brought against her before the Discipline Committee, then that would have triggered the procedure set out in section 5.1.10 and following, which would have included the appointment of a prosecutor to prepare the charge against the petitioner, the right of the petitioner to legal representation, and a number of other procedural and legal steps on the road to determination of the charge against her.

[86]      Instead of taking this course, the University Secretary went straight to notifying the petitioner that she was suspended from her studies at the University in accordance with section 5.1.7 of the Disciplinary Code.

[87]      The petitioner criticised her suspension under section 5.1.7 on a number of grounds.  She argued that the Principal was not entitled to delegate his power under this part of the Rules to the University Secretary and that, in any event, he had not done so at that time (it was only subsequently that anything was recorded in writing to this effect).  She argued that section 5.1.7 applied only in cases of “great urgency” and that this was not such a case – it was not so urgent as to justify depriving the petitioner of the opportunity to make representations prior to the decision on suspension pursuant to section 5.1.6.  She argued that suspension should be used only as a last resort (see section 5.1.3) and there were lesser (more proportionate) remedies available if steps had to be taken to exclude her from the University or from use of its email services.  All she had done was protest by email and in public places.  She argued that, once the decision was taken to suspend her, her review under section 5.1.8 should have been conducted by three members of the Court since the decision to suspend her had been made on behalf of the Principal by the University Secretary.  In addition, she complained that she had been given no prior warning of any complaint of misconduct or of the potential consequences if such a complaint was made: R v Board of Governors of Sheffield Hallam University [1995] ELR 267.  She argued her Article 6 ECHR rights (right to a fair hearing) had been violated by the process in which she had been suspended without any proper opportunity of putting her case. 

[88]      We do not accept these criticisms.  It seems to us that this part of the Disciplinary Code, if applied properly, provides a fair means of dealing with serious misconduct complaints against a student and of taking urgent action, when urgent action is required, to deal with particular problems relating to that alleged misconduct.  The provisions of section 5, starting at section 5.1.10 lay down a detailed, clear and comprehensive procedure for ensuring that serious misconduct complaints are dealt with fairly.  A charge is drafted and sent to the defender, the defender is entitled to legal representation, he or she may call evidence, he or she can challenge evidence led in support of the charge, and so on.  It is, in our view, necessary to have power to suspend on an interim basis pending the investigation and determination of a complaint.  That power required to be exercised in a just and proportionate manner.  The decision to suspend on an interim basis pending resolution of the complaint is not to be taken lightly.  Section 5.1.3 makes it clear that suspension is a last resort.  Even in the case of interim suspension, the student is normally given the opportunity to make representations before the decision is made (see section 5.1.6).  Only in cases of “great urgency” may the student be suspended without being given a prior opportunity of making representations (under section 5.1.7).  Such decisions have to be taken rapidly and we consider that it must be for the relevant authorities, in the first instance, to determine whether the case is one of great urgency justifying use of the power under section 5.1.7 on an interim basis.  Any such decision is no doubt subject to judicial review by the Court, but on the facts described in the narrative of events set out above, we consider that there was material upon which the University could properly conclude that the action it took was justified and proportionate.  But even in such cases the University is under an obligation to ensure that, within five days after a suspension under that section, the student is given the opportunities that he or she would otherwise have had before suspension under section 5.1.6.  In this way the student is given a full opportunity of presenting his or her case.  Every case must turn on the particular rules and procedure being adopted.  We see no unfairness in the procedure as set out here.  It provides for clear notice to the petitioner in the ordinary case before any interim suspension is decided upon; and, where more urgent action is required, provides the student with an opportunity of making representations as soon as possible after the interim suspension has been pronounced.  The Sheffield Hallam University case is on different facts and does not assist.  Nor is there any basis for a complaint that the petitioner’s Article 6 rights have been violated.  After the decision has been taken to suspend the student on an interim basis, whether initially taken before or after hearing any representations which the student wished to make, that suspension must be reviewed by the University, at the request of the student, every four weeks.  The student is entitled to submit written representations on each occasion.  Again, we see no unfairness this procedure.  It ensures that any interim decision is kept under review and provides the student with an adequate opportunity of presenting his or her case.  Since the suspension was made by the University Secretary, the review did not require to be conducted by three members of the Court.  So on these points we reject the criticisms of the procedure made by the petitioner.

[89]      There is, however, a more fundamental difficulty with the approach adopted by the University Secretary in suspending the petitioner under section 5.1.7 of the Disciplinary Code.  As pointed out above, any interim suspension under section 5.1.7 had to be linked to the commencement of substantive proceedings against the respondent.  Otherwise it was invalid.  The fundamental problem with the action taken by the University to suspend the petitioner under section 5.1.7 is that no substantive proceedings were ever brought against the petitioner; and it was made clear as early as the Memorandum of 6 August 2009 that no disciplinary proceedings would in fact be brought against her.  In those circumstances, whether or not the suspension as at 25 June 2009 was valid – on the basis (if it be the case) that it was intended immediately thereafter to bring disciplinary proceedings against the petitioner – it ceased to be so at the very latest when the University took a decision on or before 6 August 2009 not to proceed with a substantive complaint against the petitioner.  After that date the petitioner’s suspension under the Disciplinary Code was wrongful and in breach of the provisions of the Code.  So too were the monthly reviews thereafter, each of which confirmed the suspension.

[90]      Finally on this point we should note that the effect of suspending the petitioner under section 5.1.7 without that suspension being linked to any substantive proceedings against her meant that there was no natural or built in end point for the suspension.  In the ordinary course, the interim suspension would last only until, at the maximum, the conclusion of the substantive disciplinary hearing on the charge of misconduct.  It would then either fall away or be replaced by a penalty decided upon by the Discipline Committee, whether expulsion, permanent suspension or some other measure.  However, in this case, in the absence of any substantive disciplinary proceedings against the petitioner, the interim suspension simply continued, albeit it was reviewed every four weeks.  As a result the petitioner remained suspended from June 2009 until the middle of 2010 and indeed beyond that time, a period of suspension well in excess of 12 months, all on the basis of a decision taken and renewed by a single individual.  Yet section 2.2 of the Disciplinary Code provides that, in the absence of specific regulation, the maximum period of suspension which may be imposed by an Authorised Officer in the exercise of his summary jurisdiction, is a period not exceeding one semester.  Although it may not be accurate to describe them as acting in this case in the exercise of a summary jurisdiction, it would, we think, be odd if the powers of interim suspension under section 5.1.7 enabled the University Secretary or the Principal to suspend a student for longer than that.  That would almost certainly not happen if the power of suspension under 5.1.7 was understood, as we think it should be understood, to be a power to suspend the student pending the resolution of the substantive disciplinary proceedings.

 

Refusal to re-enrol

[91]      As appears from our summary of the dispute as it progressed, the University took a decision, which it communicated to the petitioner in a letter from the Principal dated 11 September 2009, that it would decline to register the petitioner as a student in the 2009/2010 academic year which had just commenced.  Further correspondence ensued on that topic but the University’s position remained the same and was reiterated in a letter from the VPED to the petitioner dated 2 February 2010.

[92]      On behalf of the University, Ms Poole QC argued that the decision not to register the petitioner for the 2009/2010 academic year was not susceptible of judicial review in that it lacked the tripartite relationship which was the cornerstone of the court’s judicial review jurisdiction: West v Secretary of State for Scotland 1992 SC 385 at 412-413.  After all, a university cannot be obliged to register every student who wishes to study there; and unless and until a student is registered there is no relationship between the University and the would-be student in respect of which “public law” duties may come into play.  The petitioner, for her part, submitted, under reference to various statutes and case law, that the powers exercised by the University, including the power to admit students and award degrees, were delegated powers giving rise to just such a tripartite relationship, and therefore were subject to judicial review: see, variously, section 48 of the Further and Higher Education (Scotland) Act 1992, paragraphs 3 and 4 of Part II of Schedule 2 to the Universities (Scotland) Act 1966, Costello-Roberts v United Kingdom (Application No. 13134/87, 25 March 1993) at paragraph 27.  The imposition of unreasonable terms as a condition of allowing the petitioner to register – viz the insistence on a medical certificate showing that she was fit to resume her studies – put the University in breach of Article 2 Protocol 1 ECHR and was properly the subject of proceedings for judicial review:  see e.g. Timishev v Russia (Applications nos. 55762/00 and 55974/00, 13 December 2005) at paragraph 63.  We do not find this general point to be free from doubt.  However, we do not need to decide it.  The petitioner was a student at the University in the academic year 2008/2009 and had an expectation that she would be registered for the following year.  At that stage there was on any view a tripartite relationship in existence.  It was not suggested that the actions of the University in respect of disciplinary action taken against the petitioner while she was registered as a student were in some way immune from judicial review.  The justification put forward by the University for refusing to enrol her for the academic year 2009/2010 was that she had been suspended from study until the end of the 2008/2009 academic year.  We have found that suspension to be unlawful.  The refusal to register the petitioner for the academic year 2009/2010 was a consequence of that unlawful act.  The court can interfere.  The decisions to refuse to register the petitioner for that academic year, in so far as based on the fact of her continuing suspension, were flawed and Wednesbury unreasonable.

 

Relief
[93]      Ms Poole QC argued that, even if the court were to find in favour of the petitioner on any of the matters raised by her, it should not grant any of the remedies she sought.  Judicial review was an equitable remedy and it was clear from the narrative of events that the petitioner had behaved unreasonably throughout, rejecting opportunities of discussions and possible mediation and unreasonably refusing to take the simple step of providing medical evidence that she was fit to resume her studies.  This was the approach taken by the Lord Ordinary at paragraph [136] of his Opinion.  It was supported, she submitted, by cases such as Mauger v Chief Constable of the Police Service of Scotland [2016] CSIH 44 at paragraph 37, King v East Ayrshire Council 1998 SC 182 at 194.

[94]      We do not accept the submission in relation to the facts of this case.  It is true that judicial review is an equitable remedy and may be refused even where a complaint is made out if, for example, the decision would be the same even if the matter was approached on the correct basis.  So also, the petitioner’s conduct may be highly relevant to the question of whether to grant the relief sought, and may provide a basis for refusing a remedy.  We accept, too, that the petitioner’s conduct throughout much of the dispute could legitimately be characterised at various times as both irrational and unreasonable.  But we cannot be satisfied that this was not in some significant part caused, or at least contributed to, by the actions of the University which we have found to be unjustified according to the University’s own rules.  In the circumstances we would not think it right to deny any remedy to the petitioner on these grounds.

[95]      What remedy we should grant is a matter of some difficulty.  The petitioner seeks reduction of various decisions relative to the matters discussed above, as contained in or communicated by particular items of correspondence.  She seeks reduction of her suspension as communicated by the letter of 25 June 2009 and of the subsequent decisions at monthly reviews to continue that suspension.  But although we have found that suspension to be unjustified, at least as from 6 August 2009 when the decision was taken not to institute disciplinary proceedings against the respondent, that suspension is now spent and reduction would achieve nothing.  Similarly, she seeks reduction of the decisions not to register for the academic year 2009/2010, but those decisions relate to matters in 2009 and 2010 and are of no current significance in 2017.  Reduction of that refusal would achieve nothing.  The time is past; and, by analogy with contracts for personal services, we could not in any event make an order requiring the University to admit and register the petitioner if relations between the University and the petitioner have broken down beyond repair: Murray v. Dumbarton County Council 1935 SLT 239.  On the other hand, to refuse any remedy would mean that the petitioner’s complaints, which we have found in part to be justified, would not be vindicated by any formal order.  That would not be right.

[96]      In the circumstances we consider that we should deal with the matter by way of declarator.  We propose to grant declarator in the following terms, namely:

(1)        that the University did not at any time either suspend or purport to suspend the petitioner under the provisions of its Code of Practice on Student Mental Health;

 

(2)        that, as from 6 August 2009 at the latest, the University’s suspension of the petitioner purportedly in terms of section 5.1.7 of its Code of Student Discipline was without any lawful basis and was unreasonable;

 

(3)        that, in all the circumstances, the University was not entitled to make it a condition of the petitioner’s return to her studies that she provide medical evidence of her fitness to return;

 

(4)        that the University’s refusal to register the petitioner for the academic year 2009/2010, in so far as based in whole or in part on the pretended suspension of the petitioner in terms of section 5.1.7 of its Code of Student Discipline, was to that extent unreasonable.

 

Other matters

[97]      Certain other matters are raised in the petition.  We deal with these briefly below. 

 

Recovery and/or reduction of documents

[98]      The petitioner seeks reduction of all records held by the University processing of which by the University would violate Article 8 ECHR and/or section 10 of the Data Protection Act 1998.  The Lord Ordinary refused this relief as irrelevant on the basis that no such records had been recovered by the petitioner in these proceedings.  The petitioner meets this by seeking recovery of all such documents.  In our view this application must fail.  The petition for judicial review has as its focus the petitioner’s complaints about the conduct of the University in suspending her and making the provision of a medical evidence a condition of her being allowed to resume her studies.  Had it been necessary for the determination of the petition to appoint the petition to a second (evidential) hearing, there might have been a basis for the petitioner seeking to recover documents in the possession of the University which were relevant to or cast light upon the University’s actions.  But a considerable amount of documentation has already been disclosed by the University; and it has been possible to determine the petition without requiring an evidential hearing.  In those circumstances there is no basis in these petition proceedings for recovering those documents.  In so far as the case is based upon a complaint under the Data Protection Act, that is a discrete point under the Act which does not arise in these proceedings.

 

Access to data in an independent report

[99]      There is one wholly self-contained point about documents.  For the purpose of completing her PhD thesis, the petitioner has requested the University to allow her access to a study or report containing data which, she says, is necessary to enable her to write up her thesis.  The University has refused, on the basis (a) that the research set out in the report was commissioned and carried out by certain Canadian researchers and (b) that the data contained therein is not necessary to enable the petitioner to write up and complete her PhD.  We do not understand it to be in dispute that the research was commissioned and carried out by Canadian researchers.  On that basis the university says that it is unable itself to consent to the release of the report – the petitioner should seek permission from those who commissioned or carried out the research.  On this point we consider that the University is plainly correct.  As to the second point, the assessment of whether or not the data is required to enable the petitioner to complete her thesis is, to our mind, clearly a matter of academic judgment with which we are not in a position to interfere: c.f. Van Mellaert v Oxford University [2006] ELR 617 at paragraphs 22-25.  We cannot intervene in this matter.

 

Racial and sexual discrimination
[100]    The petitioner put forward a case that the University in its actings towards her has been guilty of racial and/or sexual discrimination.  So far as concerned the allegations of racial discrimination, we were referred to the Race Relations Act 1976 (now replaced by the Equality Act 2010).  Claims for reparation under the 1976 Act have to be brought in the sheriff court.  But that does not prevent reliance on the Act in the Court of Session in the context of a claim for judicial review.  However, we see nothing to suggest that any actions taken by the University amount to racial or sexual discrimination.  Although we recognise that the burden is on the University to negate any inference of racial or sexual discrimination, we are satisfied that there is no material which would enable the inference to be drawn that the petitioner was treated any less favourably than others or that, if she was, that less favourable treatment was on grounds of race or gender.  The simple fact is that this was a one-off situation which the University did its best to deal with fairly to all concerned.  There are no comparators enabling an assessment that the treatment of the petitioner was any different from the treatment which would have been applied to anyone in a similar position.

 

Disposal

[101]    We propose in due course to pronounce an interlocutor granting declarator in the terms set out in paragraph [96] above.  The terms of those declarators deal with the main points in dispute between the parties. 

[102]    We would hope that our conclusions on the disputed issues might provide a basis on which the parties can get together to see whether there is any reasonable prospect of the petitioner being allowed to complete her PhD thesis.  We were told that all that was required was for it to be written up, a task that at one time would have taken no more than about six weeks, though that estimate may not still be valid given the time that has passed since work was done on the thesis.  It is in everyone’s interests for this to be done.  While this court cannot allow itself to be drawn into micromanaging the future relations between the parties, we are conscious that there are some issues which may not have been addressed in our interlocutor the resolution of which might assist parties in their attempts to move forward; and it may be that some further orders are appropriate in light of the matters covered by this Opinion.  For that reason, before issuing any final interlocutor we propose to put the case out By Order on a date approximately 8 weeks from the date of this Opinion, to enable parties in the meantime to discuss matters and see whether the court can provide any assistance.  We emphasise that that is not intended as an opportunity to re-argue parts of the case.  It is simply to see whether any other orders ought properly to be made in light of this Opinion.

[103]    We reserve all questions of expenses.  These can be dealt with at the By Order hearing.

[1] On occasions in the contemporaneous documentation the period is wrongly stated as being one of 48 months, reflecting the terms of the University’s original offer.  Nothing turns on this error for the purpose of this reclaiming motion.

[2] The petitioner and others sometimes use the word “suspended/ suspension” when they are referring to “interrupted/ interruption”.  “Authorised interruption of study” is a formal step governed by Working Guidelines issued by the University.  It was formerly called “suspension of study”.  In the context (and as is made clear by other correspondence), it is clear that what was sought by the petitioner (and what was granted) was a retrospective “interruption” of her studies for this period.  The inaccurate use of the term “suspended/ suspension” for “interrupted/ interruption” potentially causes problems unless care is taken to see from the context what is actually intended.

[3] In April 2009

[4] i.e. interruption

[5] In May 2009 (see below)

[6] The letter from the Head of College bears to reply to an email from the petitioner of 9 May 2009, but we agree with the Lord Ordinary that this was probably a mistake for 12 May 2009.

[7] Again, in the context this means “interrupted”.

[8] This is the earliest date on the form.  It may be that the process of preparing the application started earlier.

[9] There is in process a draft letter from the Head of College bearing the date 24 June 2009 which took a line approximating to that suggested in the Case Advisory at Option 1, in effect purporting to suspend the petitioner’s right of access to University facilities on health grounds until such time as she could provide medical evidence that she was able to resume her studies without disrupting the work of others.  This letter is marked “Draft” in manuscript at the top.  In her submissions the petitioner said that this appeared to be a draft which was never sent.  Her position on that was not contradicted by Ms Poole for the University.  It was not relied on by either party as bearing to be a communicated decision suspending the petitioner under the Mental Health Code, nor was it mentioned by the Lord Ordinary.  The petitioner referred to this draft letter for the light it cast on the University’s actings – the Head of College was unlikely to have drafted this letter if he thought that he had already suspended the petitioner under the Mental Health Code on 15 May 2009.

[10] The reference to the interruption of studies being granted by the College is wrong.  The College had no power to grant it.  It was, of course, granted by the CPGSC.  But nothing turns on this mistake.

[11] The University Secretary’s letter referred to here was in fact dated 25 June 2009, not 24 June.