Doubtfire & Anor, R (on the application of) v West Mercia Police Authority & Anor

This is the substantive hearing of two applications for judicial review that raise common issues concerning the true effect of Regulation 30(2)(c) of the Police (Injury Benefit) Regulations 2006 (“the 2006 Regulations”). Permission was given to Ms Doubtfire to bring proceedings by HH Judge Raynor QC on 8^th January 2010. Permission was given to Mr Williams to bring proceedings by Nicol J on 11^th February 2010. On 8^th March 2010, I ordered that these two applications be heard together.

In each case judicial review is sought of decisions by the Selected Medical Practitioner (“SMP”) appointed by the Interested Parties that the Claimants are not entitled to an injury pension under the 2006 Regulations and/or of the decision by the Defendant to dismiss appeals by the Claimants in each case from those decisions.

Since the decision of the SMP was in each case the subject of an appeal to the Defendant in my judgment it is with the lawfulness of the decisions reached by the Defendant in relation to the appeals that this hearing is properly and exclusively concerned. In each case the Defendant upheld a decision of the SMP that the Claimants were not entitled to an injury pension. The Interested Party in each case submits that the decision of the Defendant in each of the cases was lawful and rational and that these applications should be dismissed.

Where a police officer suffers disablement which is likely to be permanent there are potentially two different schemes that apply.

The first, which was at the material time governed by the Police Pensions Regulations 1987 (“the 1987 Regulations”), provides for the payment of a pension to such an officer if that officer is required by the Police Authority concerned in the exercise of its discretion to retire as a result of such disablement. An officer who suffers disablement that is likely to be permanent need not but can be required by the police authority concerned to retire, and the officer cannot opt to retire in such circumstances – see R v. Sussex Police Authority Ex Parte Stewart [2000] EWCA Civ. 101. Thus at least three situations can arise – (a) one where the officer suffers disablement that is likely to be permanent but his services are retained; (b) one where the officer suffers disablement that is likely to be permanent and his services are retained initially but the Authority decides subsequently to require that officer to retire by reason of the disability in question and (c) one where the officer suffers disablement that is likely to be permanent and he is required to retire immediately by reason of that disability. Once it has been concluded that an officer has a disability which is likely to be permanent, the discretion which the Police Authority concerned has can be exercised for any rational reason. Thus such a decision could be driven by the availability of a post for an officer with the disability concerned that subsequently disappears as a result of administrative reorganisation – see R(Ashton) v. Police Medical Appeal Board [2008] EWHC 1833 (Admin). It is to be noted that for the purposes of the 1987 Regulations there is no requirement that the disability should have been suffered by the officer concerned in the execution of his duties.

The other scheme is that governed by the 2006 Regulations. It provides for (additional) payments to be made to officers who not only suffer disablement that is likely to be permanent but suffer such disablement “… as a result of an injury received without his own default in the execution of his duty.” The entitlement to an injury award under the 2006 Regulations arises only when the officer is required to retire by the Police Authority – see Regulation 11(1) of the 2006 Regulations. Thus there can be cases where a decision that an officer is permanently disabled is taken for the purposes of the 1987 Regulations many months and perhaps years before a decision is taken whether such permanent disability is the result “… of an injury received without his own default in the execution of his duty.”

There is no dispute concerning the factual background – see the Grounds for Contesting the Claim and the skeleton submissions filed on behalf of the West Mercia Police Authority. Thus I can take the relevant factual background from the Claimant’s grounds and skeleton submissions.

The Claimant served as a police officer with the West Mercia Police from 23^rd October 1989 until she was retired by reason of ill health on 6^th September 2008.

The Claimant has a history of intermittent mental illness. She had depressive episodes in 1993, 1996 and 2001, none of which were directly related to her service as a police officer.

The Claimant suffered a further period of mental illness after she took up a post as a “Hate Crime Officer” in Hereford. The Claimant claims that she was required to work without proper training or supervision in a stressful role where she was directly answerable to the public. She perceived a level of insensitivity from her superior officers and a lack of adequate line management at senior level.

In October 2004 there was an attempted suicide. The Claimant returned to work briefly and then had an extended period away to get married. She returned to work in December 2004 and worked until 25 April 2005. Her depression returned and she was off work until 4 July 2005. She returned to work in July 2005 but complained of a lack of supervision and felt depressed. She continued to work until 24 November 2005 when she went off sick again. The trigger was that a complaint had been made about her work. She became “very depressed”. She was off work from November 2005 onwards. The Claimant never returned to work as a police officer.

Dr Appleford, a consultant psychiatrist engaged by the Police Federation to report on the Claimant, prepared reports dated 19^th April 2007 and 10^th January 2010 which were before the Defendant when hearing the Appeal that gives rise to this claim. In the first of his reports Dr Appleford concluded that:

The Claimant had A recurrent depressive disorder, which leads to mental impairment;

The disorder has persisted intermittently for over 11 years;

The mental impairments from which the Claimant has suffered have had a substantial and long term adverse effect on her ability to undertake day to day activities.

Dr Appleford concluded in his initial report that the Claimant’s mental illness meant that she was disabled but that it was too early to say whether the Claimant was permanently disabled from being able to work as a police officer. He recommended a course of Cognitive Behaviour Therapy (“CBT”) to see whether this would improve her ability to cope with the stresses of work as a police officer. The Claimant then completed a course of CBT but it is common ground that it did not result in sufficient improvement for her to be able to resume police work.

Dr Jackson was appointed by the West Mercia Police Authority in July 2008 as SMP for the purpose of deciding the statutory questions whether the Claimant was suffering from a disability and, if she was, whether that disability was likely to be permanent. Dr Jackson concluded that:

The Claimant then applied for an injury award under the 2006 Regulations. The issue that remained to be decided was whether the Claimant was permanently disabled as a result of an injury received without her own default in the execution of her duty. This question was required to be referred to Dr Jackson who was appointed SMP for that purpose. He decided that what he had diagnosed as Social Phobia was not the result of an injury in the execution of duty.

Dr Jackson’s diagnosis of Social Phobia as the predominant cause of the Claimant’s permanent disablement was not accepted by Dr Appleford. In his second report dated 10^th January 2009 [Tab 4] he observed at paragraph 11.13:

From that decision, Ms Doubtfire appealed to the Defendant. The appeal failed because the Defendant considered it was bound to decide only whether the condition of Social Phobia had been caused or substantially contributed to by an injury or injuries in the execution of duty. It is not disputed that if the Defendant was wrong to have concluded that its task was limited in this way a different conclusion might have been reached applying the test as formulated by Cranston J in R (Merseyside Police Authority) v. PMAB [2009] EWHC 88 (Admin) on the basis that she was disabled by depression, that her depression was a partial cause of her disability and her depression was directly and causally connected with service as a police officer.

I take the facts relevant to Mr Williams largely from the Grounds and the skeleton submissions filed on his behalf, noting that whilst they are not agreed they are not disputed for the purposes of the present claim – see Paragraphs 2-3 of the Merseyside Police Authority’s skeleton submissions. Nothing that I say hereafter concerning the facts of this case should be regarded as relevant for the purpose of any other proceedings that may take place hereafter between Mr Williams, the Defendant and Merseyside Police Authority.

The Claimant joined the Merseyside Police in July 1991 and served with that force until he was required to retire on 4^th September 2006. He worked for 7 years as a uniformed officer and then requested a transfer to work at an Enquiry Desk because he had to have more stable hours to work around the family’s child care needs.

The Claimant had no history of mental illness prior to 2001. In April 2001 he was transferred to uniformed duties at Southport from a non operational role which he had been performing for the previous 3 years. The Claimant had requested re-training prior to him being redeployed but this was apparently refused. He made subsequent requests for retraining following his re deployment but these too were refused.

In June 2001, he was asked to tutor a particularly difficult probationary constable. In September 2001 he felt that the pressures of the job were getting on top of him and he again asked for help but this was refused. In November 2001 the Claimant had a breakdown. On 15^th November his GP certified him unfit for work for a year and prescribed him an antidepressant drug, Paroxetine. He returned to work but he was off work again from April to September 2004. After the Claimant’s return to work he was allocated a role in an organisational intelligence unit at Crosby Police Station. When the unit moved to a smaller office where there was no space for the Claimant he agreed to move to work as an office manager for the neighbourhood team based at Crosby Police Station. Throughout the period 2001 to 2006 the Claimant was being treated for the depressive illness which had been precipitated by the events of 2001.

In April 2006 the Claimant was examined by the Force Selected Medical Practitioner (“SMP”) Dr Smith following a referral by the Police Authority under regulation H1(2)(a) and (b) of the 1987 Regulations to determine whether the Claimant was permanently disabled within the meaning of the regulations. Dr Smith’s report dated 12^th April 2006 records his decision that the Claimant was disabled from performing the ordinary duties of a constable and that his disablement was likely to be permanent. Dr Smith diagnosed the disorder resulting in the Claimant’s disablement as being Bipolar Affective Disorder (ICD F31.6). The Claimant was required to retire and he was retired accordingly on 4^th September 2006. The Claimant then applied for an injury pension under the 2006 Regulations.

The Claimant’s case was referred to a different SMP, Dr Vincenti, who wrote a substantial report dated 29^th June 2007. The issue that Dr Vincenti had to resolve was whether Mr William’s permanent disability certified by Dr Smith was the result of an injury sustained in the execution of his duty. Dr Vincenti’s Report stated at paragraph 10.1:

Dr Vincenti considered that the Claimant’s depressive illness had a precipitating cause linked to his work and in particular the lack of support that the Claimant had when he was transferred back to uniform in 2001. Dr Vincenti therefore concluded that the permanent condition from which the Claimant suffered, namely depression, was “the result of an injury received in the execution of his duty”. Dr Vincenti therefore signed a certificate to that effect dated 29^th June 2007. On 24^th September 2007 the Police Authority issued Judicial Review proceedings against Dr Vincenti to challenge the legality of the certificate that he had issued in relation to the Claimant. The broad grounds of the claim were that the Claimant’s depressive illness had arisen whilst the Claimant was at work but not as a result of his work. On 5^th February 2008 the Police Authority were granted permission to proceed with their claim by Pitchford J and on 18^th November 2008, the claim was compromised on the basis that the Claimant’s application for an injury award would be referred to a new SMP for consideration. The SMP appointed by the Police Authority to undertake the second assessment under Regulation 30(2)(c) and (d) of the 2006 Regulations was Dr Staley of the West Midlands Service for Police Psychiatry.

Dr Staley produced a report dated 18^th February 2009 in which he stated that:

The Claimant appealed to the Defendant which held a hearing on 23^rd September 2009. The expert medical member, Dr Nehaul, on behalf of the Board hearing the appeal did not accept Dr Smith’s diagnosis of the Claimant as having Bipolar Affective Disorder and concluded that the correct diagnosis was of a moderate depressive illness. The Defendant Board then examined the circumstances that gave rise to the Claimant’s illness and concluded at page 14:

The 1987 Regulations

The Home Office Guidance entitled “Medical Decisions under Regulations H1 and 30” states at paragraphs 10 to 12:

The 2006 Regulations

Ms Doubtfire contends that the Defendant made an error of law in concluding that it was limited solely to considering whether the mental health condition diagnosed by Dr Jackson when he declared the Claimant to be permanently disabled for the purposes of Regulation A20 (Social Phobia) was caused by an injury “ … without [her] own default in the execution of [her] duty …” when deciding the issue referred to in Regulation 30(2)(c) of the 2006 Regulations. Similarly, Mr Williams contends that the Defendant made an error of law in concluding that it was limited to considering whether disablement caused by the condition diagnosed by Dr Smith for the purposes of Regulation A20 – Bipolar Affective Disorder – was the result of an injury sustained by Mr Williams in the execution of his duty. In each case the Claimants contend that the Defendant was required to ask itself whether their respective permanent disabilities were the result of an injury received in the execution of their duty.

Both Police Authorities contend that the Defendant was correct in the approach that was adopted and contend that had either Claimant been dissatisfied with the diagnosis reached by the respective SMPs for the purpose of Regulation A20 then their remedy had been to appeal to the Defendant the conclusions reached by the SMPs when answering the questions posed by the police authorities pursuant to Regulation H1(2) of the 1987 Regulations.

Alternative arguments were advanced at the hearing on behalf of Mr Williams and Ms Doubtfire to which I turn at the end of this judgment to the extent that it is necessary to do so.

In my judgment the answer to the difficulty that arises lies in an examination of the questions that have to be answered at each stage in the process and of the scope of the provisions within each of the Regulations which provide for the answers given to be final.

The questions that have to be answered clearly distinguish between (1) whether the officer concerned is (a) disabled and (b) likely to be permanently disabled (which I refer to hereafter as “the disablement questions”) and (2) whether the disablement in question is the result of an injury received in the execution of duty (which I refer to hereafter as “the causation question”). None of them requires the SMP or Board concerned to diagnose the infirmity or injury concerned much less do the regulations make any such diagnosis final. It is only the decisions (1) whether the officer concerned is (a) disabled and (b) likely to be permanently disabled and (2) whether the disablement in question is the result of an injury received in the execution of duty that are final.

Each SMP asked to answer the disablement questions will have to arrive at a diagnosis (or possibly a range of diagnoses) as part of the chain of reasoning leading to the SMP’s answer to the question he is asked, not least for the purpose of demonstrating that the relevant disablement has been caused by an “ … infirmity of mind or body …” as required by Regulation 7(4) of the 2006 Regulations (or Regulation A12 of the 1987 Regulations) – a concept which is further defined by Regulation 7(8) of the 2006 regulations. However, there is nothing within the 2006 Regulations that requires the SMP (or for that matter the Defendant) considering the causation question to consider itself bound by the diagnosis arrived at by the SMP (or the Defendant) when answering the disablement questions as opposed to the decisions made. My reasons for reaching these conclusions are set out below but in summary are that (a) such a conclusion more naturally arises from the language of the regulations (b) the alternative conclusion is likely to result in anomalous results if not absurd ones whereas (c) that is not or is much less likely to be so if the approach set out above is adopted.

I start by considering the language of the Regulations. The disablement questions are to be found respectively in Regulation H1(2) of the 1987 Regulations and Regulation 30(2)(a) and (b) of the 2006 Regulations. As is apparent from a perusal of these questions, they require the SMP to say whether (a) the officer concerned is disabled and (b) whether that disablement is likely to be permanent. Disablement is defined for present purposes by Regulation A12(2) of the 1987 Regulations and Regulation 7(4) of the 2006 Regulations in the same terms – “ … inability occasioned by infirmity of mind or body to perform the ordinary duties of a member of the force…”. Whilst it is no doubt necessary for an SMP or a Board to arrive at a diagnosis for the purpose of demonstrating that the officer concerned is or is not disabled by an “… infirmity of mind or body …” just as it will be necessary for him or it be satisfied that the officer concerned suffers from an inability to perform the ordinary duties of a police officer, it is only the answer to the question whether the officer is disabled that is final not the reasoning that led to that conclusion. This is impliedly recognised by Paragraph 10 of the HO Guidance set out above which refers to the provision of a diagnosis “wherever possible”. As Regulation H2(5) of the 1987 Regulations and Regulation 30(6) of the 2006 Regulations makes clear it is the decision of the SMP on the question or questions referred to him that is final not the reasoning that led to that decision.

Analysed in this way, if the officer concerned is dissatisfied with the conclusion that he or she is (or is not) disabled and that he or she is (or is not) likely permanently to be disabled, the officer can appeal. If however the officer concerned is satisfied with the decisions the SMP has made then there is no necessity for him or her to appeal to a Board because he or she disagrees with the diagnosis that led to this conclusion.

It was submitted on behalf of the Interested Parties in this case that this was not a correct analysis because Paragraph 10 of the Home Office Guidance. requires the report by the SMP to include within it a description of the disease or condition that has caused disablement “wherever possible” and the wording of Regulation 31 of the 2006 Regulations is sufficiently wide to permit an appeal against any part of the Report of the SMP including the diagnosis of the SMP. The inference was therefore that the diagnosis if any arrived at by the SMP when deciding the disablement questions was binding and could be appealed if it was not accepted. I don’t agree with this analysis. Regulation H2(5) of the 1987 Regulations and Regulation 30(6) of the 2006 Regulations requires that the decision of the SMP “… on the question or questions referred to him under this Regulation shall be expressed in the form of a report …” and the right of appeal as defined in Regulation 31(1) is accorded to a person who is “… dissatisfied with the decision of the [SMP] as set out in a report under Regulation 30(6) …” not with the contents of the report other than the decision. The decisions here referred in relation to the disablement questions are (a) whether the officer concerned is disabled and (b) whether such disablement is likely to be permanent. .

The Interested Parties placed reliance on the proviso to paragraphs (a) and (b) of Regulation 30(2) (“the proviso”) as supporting their case on this issue but in my judgment that reliance is misplaced because it begs the question that arises in the cases before me. If, as I have concluded is the case, the disablement questions are confined in the way that I have described then the only conclusions that are binding on the SMP or Board when considering the causation question are the conclusions that the officer concerned is disabled and that such disablement was likely to be permanent at the time when that decision was taken.

I now turn to the causation question. This question only arises under the 2006 Regulations if the police authority concerned is “… considering whether to grant an injury pension …”. The causation question that the SMP to whom it is referred is required to answer is whether “… the disablement …” is the result of “… an injury received in the execution of duty”.

In my judgment, the question posed by Paragraph (c) is in fact two questions. The first is whether the disablement which the SMP considering the causation question is required to assume has been caused by an injury. Not merely is the SMP considering the causation question not bound by any conclusions reached previously by the SMP when answering the disablement questions but the SMP considering the causation question is positively required to arrive at an answer to this question him or herself applying the detailed provisions concerning injury for these purposes set out in Regulation 6 of the 2006 Regulations. It is noteworthy that “infirmity” is defined more widely that “injury”. However, the question does not require the SMP or Board to decide whether the infirmity identified by the SMP or Board who decided the disablement questions was (a) an injury and (b) received in the execution of duty. What the SMP or Board deciding the causation question is required to decide is whether the disablement was caused by (a) an injury and (b) received in the execution of duty. This requires the SMP or Board deciding the causation question to arrive at an independent diagnosis.

The SMP deciding the disablement question is not required to decide the cause of the disablement other than for the purpose of satisfying the authority that he has correctly applied Regulation 7(4) as explained by Regulation 7(8). The SMP considering the causation question has to decide what if any injury as defined caused the disablement before he can answer the further question whether the injury that it is concluded caused the disablement was received in the execution of duty.

If the analysis identified above is adopted then the absurdity that so concerned the Defendant Board in relation to Mr William’s case – that is that the permanent disability of the Claimant was caused by an injury and was caused in the execution of duty but the Defendant was precluded from answering the causation case in favour of the Claimant because it did not agree with the original diagnosis - cannot arise. That can only arise if the Defendant’s construction is adopted and the SMP or Board answering the causation question is forced to do so by reference to a diagnosis arrived at in the course of answering the disablement questions that the SMP or Board considering the causation question do not agree with.

If the Defendant was correct then it would not be necessary to refer the causation issue to an SMP because the nature of the injury suffered by the officer concerned would have been finally decided by the SMP or Board answering the disablement questions and thus the only issue left to be decided would be whether the injury diagnosed by the SMP or Board answering the disablement questions had been received in the execution of duty which might, but will usually not, be an issue requiring medical expertise to answer. Finally, if it had been intended that the diagnosis of the SMP or Board answering the disablement questions would be final, the Regulations would have said so. The regulations very carefully avoid saying that.

It was argued on behalf of the Claimant that if the Defendants’ contentions were correct and they were bound by the diagnosis of the SMP or Board deciding the disablement questions, it would lead to absurdity because if an officer who had suffered one permanent disability otherwise than in the execution of his duty subsequently suffered another and he was required to retire, the consequence would be that he or she would be unable to recover an injury award because an SMP or the Defendant on appeal from the SMP when considering the question posed by Regulation 30(2)(c) would be confined to answering that question by reference to the first of these conditions which by definition would lead to the conclusion that an injury award could not be made.

I do not accept that this is a correct analysis nor do I consider that issue to be helpful in deciding the issues that arise in this case. The wording of Regulation 30(2) taken as a whole makes clear that the reference to “…the disablement …” in paragraph (c) is to the disablement in respect of which either the disablement questions identified in (a) and (b) have been answered affirmatively or the disablement is one to which the proviso applies. Thus where an officer suffers a permanent disability otherwise than in execution of his duty but sustains another disability thereafter but before he is required by the Police Authority concerned to retire, then the disablement questions will not have to be answered in relation to the decision to retire him for those questions will already have been decided in relation to the non-duty injury and his status as a permanently disabled officer will have been established for retirement purposes and does not have to be established again. However, in relation to any claim for injury benefit by reference to the subsequent duty injury all three questions (the disablement questions and the causation question) identified in Regulation 30(2) will have to be answered not because it is relevant to the retirement decision but because on this hypothesis all three will be relevant to the question whether injury benefit should be paid by reference to the permanent disability alleged to have been caused by the duty injury. Thus as I see it there is no risk of the sort of absurdity that the Claimant prays in aid arising, nor do I see this issue as assisting in the question that arises one way or the other.

Finally I should mention briefly the authorities referred to by Mr Bassett in Paragraph 25 of his skeleton submissions. In summary I do not consider that any of them undermine the conclusions that I have reached in this judgment. R (Turner) v. PMAB [2009] EWHC 1867 was concerned with an attempt by the PMAB to reopen a decision of a Dr Bray who had decided what I have called the causation question in favour of the Claimant in those proceedings. The appeal before the PMAB was from a Regulation 37 Review. The conclusion that Burton J arrived at was that on such a review it was not open to the reviewing SMP to re-open what had been decided under Regulation 30. That does not impact on the questions that I have decided because it does not address the question relevant here namely whether a diagnosis arrived at by the SMP answering the disablement questions is binding on the medical Authority deciding the causation issue. Similar considerations apply to the decision of Silber J in R (Pollard) v. PMAB [2009] EWHC 403 (Admin) and Cox J in R (Laws) v. PMAB [2009] EWHC 3135 (Admin).

In relation to Ms Doubtfire, it is clear from the defendant’s report that it asked itself the wrong question namely whether “workplace events” might have led to Social Phobia. That was not the correct question. The correct question was whether her permanent disablement had been caused by an injury in the execution of duty. That was undoubtedly a complex exercise involving consideration of a dispute as to whether Ms Doubtfire’s condition was caused by one or more conditions, whether such conditions were injuries and whether any of the conditions found to be injuries could be said to have been an injury received in the execution of duty. It follows that the decision of the Board will have to be quashed. What other relief is appropriate in the circumstances is something on which I will permit further submissions to be made. However, provisionally, I consider the proper course will be to remit the matter to the Defendant with a direction that it reconsider having regard to the terms of this judgment pursuant to CPR 54.19.

In relation to Mr Williams, exactly similar conclusions follow – the Defendant asked itself whether Bi Polar Affective Disorder was the result of an injury on duty. This was not the correct question as I have explained. The correct question involved asking whether Mr William’s permanent disablement was the result of (a) an injury, which (b) was received in the execution of duty. Thus in my judgment its decision must also be quashed and the matter remitted to the Defendant with a direction to reconsider having regard to the terms of this judgment.

In the light of the conclusions that I have so far reached it is not necessary that I consider the various alternative grounds relied on and it is not desirable that I should do so since they touch upon issues of fact that the Defendant will have to grapple with.

In the interest of saving costs I indicated to the parties that I would deal with all consequential matters following the circulation of a draft of this judgment by telephone. That being so, I directed that:

The Claimant file and serve its list of typographical and other obvious errors and its submissions concerning costs, and permission to appeal by no later than 4pm 6^th May 2010;

The Interested Parties file and serve its list of typographical and other obvious errors and its submissions concerning costs and permission to appeal by no later than 4pm 8^th May 2010;

The Claimant file and serve any submissions in reply to those filed by the First Defendant by no later than 4pm 10^th May 2010.

Costs:

First Interested Party

Second Interest Party

Application By Interested Parties For Permission To Appeal