Williams, R (On the Application Of) v Merseyside Police Authority

This is a claim brought by the Claimant (“Mr Williams”) for judicial review of a decision made by the Defendant, the Police Medical Appeal Board (“the Board”), on 1 September 2010, the effect of which was to refuse Mr Williams, a former serving police officer, a police injury pension. The claim involved the difficult issue as to whether or not a former police officer, compulsorily retired due to permanent disablement as a result of psychiatric illness, can establish an entitlement to a police injury pension on the basis that the psychiatric illness was, in the words of the relevant Regulations “received … in the execution of his duty [as a constable]” (Footnote: ¹).

As is usual, the Board has left it to the Interested Party (“the Authority”) to defend the case, on the basis that it is the Authority which has a direct financial interest in the result.

The 6 grounds of challenge, as set out in the detailed statement of grounds and as advanced in the skeleton argument submitted by Mr. Lock are as follows:

Mr Williams’ application for an injury pension already has a protracted and unfortunate history. The Selected Medical Practitioner (“SMP”) originally appointed by the Authority to determine whether or not Mr Williams was permanently disabled, a Dr Smith, occupational physician, answered that question in the affirmative in his report dated 12 April 2006. As a result of that decision, in July 2006 the Authority elected to exercise its undoubted right in such circumstances compulsorily to retire Mr Williams. Mr Williams made an application for a police injury pension in August 2006. The Authority then referred the question of his eligibility for injury pension to another SMP, a Dr Vincenti, consultant psychiatrist, who answered that question in the affirmative in his report and certificate dated 29 June 2007. However the Authority was dissatisfied with that decision, and issued proceedings for judicial review to quash it. Permission was given by Pitchford J, and the proceedings were subsequently compromised on the basis that the application would be determined by a replacement SMP. The replacement SMP, Dr Staley, consultant psychiatrist, answered that question in the negative. Mr Williams exercised his statutory right to appeal that decision to the Board.

The Board, in its original decision dated 15 October 2009, dismissed the appeal on the ground that it was bound by the decision of Dr Smith as to the particular type of psychiatric illness sustained by Mr Williams - even though they clearly disagreed with it - and, that being so, considered itself unable to find in his favour because they could not determine that any injury received in the execution of his duty caused that particular psychiatric illness. Mr Williams was, unsurprisingly, dissatisfied with that decision, and issued his own proceedings for judicial review. The case came before HHJ Pelling QC, and in his decision in that and another case (R (Doubtfire & Williams) v The Police Medical Appeal Board [2010] EWHC 980 (Admin) he agreed with Mr Williams and quashed the decision of the Board. He held that it was wrong to conclude that it was bound by the particular diagnosis made by Mr Smith. Thus he remitted the matter to the Board with a direction to reconsider, having regard to the terms of his judgment. The Board duly reconvened and reconsidered and issued its determination, again adverse to Mr Williams but on different grounds. It is that reconsideration which is now the subject of the current challenge.

It is extremely unfortunate for everyone, particularly of course Mr Williams, that his application for injury pension has already had such a protracted history. It was clearly anticipated that this process ought to be straightforward and speedy; as Richards J (as he then was) said in R v Kellam, ex p South Wales Police Authority (2 July 1999), in a passage endorsed by the Court of Appeal in Commissioner of Police v Stunt [2001] EWCA Civ 265, “the test of causation is not to be applied in a legalistic way. The concept is relatively straightforward … and falls to be applied by medical rather than legal experts”.

In his judgment in the case of Merseyside Police Authority v Police Medical Appeal Board [2009] EWHC 88 (Admin) Cranston J observed [paragraph 1] that:

“In the first instance decisions on the matter have to be made by medical practitioners. Then appeals are heard by the Board, comprised of doctors, not lawyers. Unfortunately the case law suggests that the doctors making decisions on the applications of the concept are not finding the matter straightforward”.

In paragraph 58 he concluded by saying that:

“The [Board] has a difficult task. The Board comprises medically qualified persons and yet is required to apply an accretion of case law, some of which contains distinctions which even the legally qualified do not find easy to grasp. Earlier in this judgment I offered what I hope is an accurate account of the current law. Perhaps the key considerations are that the concept of injury received in the execution of duty must be given a benevolent application and that it goes beyond active participation in operational duties. It seems to me that the court must give the Board leeway in their application of the concept. If not the solution may be a reconstitution of the Board process with a more direct legal input.

In the present case I cannot but help thinking that the Board, which had the (perhaps doubtful) benefit of citation of numerous authorities, but which did not have the benefit of submissions from legally qualified representatives, might have been assisted by advice from a legal assessor.

Be that as it may, in this case I am satisfied that the Board has erred so that I must quash its decision and remit the question for a fresh decision by a different Board.

Of course I regret the further delay, expense, and continued uncertainty which this will cause the parties, but unless the parties can agree to settle this dispute without further reference to the Board there is no alternative to a further hearing.

This judgment is divided into the following further sections:

(a) The 2006 Regulations

The entitlement to injury pension arises, where "a person who ceases or has ceased to be a member of a police force is permanently disabled as a result of an injury received without his own default in the execution of his duty" (regulation 11(1)). Here, it is common ground that Mr Williams was a person who had ceased to be a member of a police force and that he was permanently disabled; the only issue which had to be resolved by the Board was whether the permanent disablement was as a result of an injury received in the execution of his duty, there being no contention that any injury was received due to any default on the part of Mr Williams.

The test for the connection between the disablement and the injury is dealt with in regulation 8, which as relevant provides that "disablement shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement". Thus it is not necessary for the injury to be the sole cause of the disablement; an injury received in the execution of duty which has substantially contributed to the disablement is sufficient, even if other injuries, not received in the execution of duty, have also substantially contributed to the disablement.

An injury is defined by Schedule 1 as including "any injury or disease, whether of body or of mind". It is common ground, therefore, that it includes a psychiatric injury.

Regulation 6(2) extends the meaning of the phrase "injury received in the execution of duty" to include cases where:

Part 4 of the 2006 Regulations makes provision for appeals and medical questions. In short, regulation 30 provides that where a police authority is considering whether an officer is permanently disabled and whether to grant an injury pension, the following 4 questions are to be referred for decision to a duly qualified medical practitioner (the SMP), whose decision shall, subject to any appeal under regulation 31, be final.

“(a)

whether the person concerned is disabled;

(b)

whether the disablement is likely to be permanent;

(c)

whether the disablement is the result of an injury received in the execution of duty;

(d)

the degree of the person's disablement.”

Regulation 31 provides that where a person is dissatisfied with the decision of the SMP he is entitled to appeal to a board of medical referees ("the Board") which, if it disagrees with any part of the report of the SMP, shall provide a report of its decision on any of the questions referred to the SMP on which it disagrees, which decision shall be final. Regulation 31(3) provides that subject to a review under Regulation 32 or to any process of judicial review the decision of the Board is final and binding on the parties.

The procedure for appeals is contained in Schedule 6 to the 2006 Regulations. It provides, amongst other things, for: (i) the Board to consist of not less than three medical practitioners; (ii) an appeal hearing, at which the parties are entitled to be represented; (iii) for the parties to submit "written evidence or a written statement" in advance of the hearing, with the other party having the right of response; (iv) the Board to be entitled to "interview or examine the appellant" at the hearing of the appeal; (v) for the applicant to be medically examined if appropriate. The Schedule makes no express provision for disclosure, for anyone other than the applicant to give live evidence, or for cross-examination.

(b) Home Office Guidance

The Home Office has produced written guidance on medical appeals, and I have been provided with and referred to some relevant sections from that guidance. I have been referred to section 4, providing guidance on the question of “permanent disablement as a result of injury in the execution of duty”, which includes at paragraph 14 the following guidance, under the heading “evidence-based approach”:

“14.

In injury cases in particular it is important that the SMP should satisfy him or herself that the evidence presented about the circumstances surrounding the injury and the disablement in question is not accepted uncritically from either party. It is for the SMP to test and weigh the evidence given in the light of the other evidence provided and in the light of his or her own medical knowledge and reasoning. In deciding whether a statement put to him or her as a matter of fact is to be accepted as such, after having duly tested and weighed it, the SMP should apply the balance of probabilities and not a higher evidential test."

Under section 9, headed "decision of the Board" one finds guidance under 10 separate paragraphs, of which paragraphs 1 - 3 are relevant, and provide as follows:

It follows from the Regulations and the Home Office Guidance, and none of this was controversial before me, that:

It follows in particular from points (5) and (6) above that the decisions made by the Board must give sufficient reasons for the parties to understand who has won and why and, in particular, what decisions the Board has reached on the matters in dispute, including medical, factual and legal matters, and why. I note that in Metropolitan Police Authority v. Laws [2010] EWCA Civ 1099 Laws LJ (at paragraph 17) considered it “plain that the Board’s decision is to be in the form of a reasoned report”.

The relevant history

It is unfortunately necessary to refer in some detail to the evidence relating to the cause or causes of the psychiatric illness which led to Mr Williams becoming permanently disabled from performing the full range of duties expected of a police officer, and to the grounds upon which his application for police injury pension was advanced both initially and before the Board, because the essential complaints made by Mr Lock QC on his behalf are that: (a) the Board failed to make a decision on the fundamental question of what was the cause or causes of the psychiatric illness, and in particular whether or not they were “received in the execution of his duty”, and instead became diverted into seeking to decide only whether or not Mr Williams had proved his complaints of bullying or harassment; (b) the Board failed to make any or any proper decision as was required of it even on the limited question as to whether or not Mr Williams had proved his case in relation to the complaints of bullying or harassment to the requisite standard. Given the arguments advanced by Mr Bassett in support of the Board, issue (a) cannot be answered without considering in some detail the way in which the case was advanced by Mr Williams before the Board, and issue (b) cannot be answered without considering in some detail the evidence which was before the Board.

Overview

Mr Williams joined the police service on 10 July 1991, at the age of 27. In 1998 he moved to a desk-based role, because that made it easier for him and his wife, who was also a serving police officer, to look after their son. In April 2001 he was redeployed back to front line policing. It is the events of April through to November 2001, when Mr Williams went off sick as a result of suffering a depressive illness with anxiety, which are at the heart of this case. In summary, and without seeking to set out a fully comprehensive account at this stage, Mr Williams has contended that whilst he was not unwilling to return to front-line policing, he wanted to receive suitable re-training before he did so. He says that his requests for training, both before and after he returned to front-line policing, were rejected, and that the manner in which his concerns were treated was unacceptable. He identifies the behaviour of his line managers in his new post, namely Sergeant Hilton and Inspector Fitzpatrick, as bullying. He says that this was compounded by his being asked to act as the tutor constable for a new probationary officer, even though he expressed his concerns that he was not properly able to do so. He says that all of this caused him stress and anxiety, leading to sleeping difficulties. He says that matters were exacerbated in September 2001 by witnessing the aftermath of a fatal road traffic accident, and he complains about a lack of support in relation to that. His sleeping difficulties worsened and, in November 2001, he had what he described as a complete breakdown and was unable to work. It is common ground that Mr Williams had no history of psychiatric illness or symptoms suggestive of psychiatric illness before the events in question.

It is not necessary to refer in any detail to events after November 2001. He returned to work a year later at the same station, but not on front-line duties, but his symptoms of depression and anxiety continued, and he was off sick again between April and September 2004. On his return to work in September 2004 he was given a different role as an office manager, which he enjoyed. I have already referred to the referral to Dr Smith. He concluded that Mr Williams was indeed suffering from a serious psychiatric illness, and that he would be permanently unfit to perform a front-line policing role, although he was fit to perform his current role. Surprisingly, Dr Smith disagreed with the diagnosis of all of the other specialists who had seen Mr Williams previously, taking the view that a diagnosis of bipolar affective disorder was more consistent with his symptoms than a diagnosis of depression with features of anxiety. In July 2006 Mr Williams was compulsorily retired from the police force, the Authority being entitled to take this step as a result of the conclusion reached by Dr Smith, notwithstanding Dr Smith’s opinion that he could have continued working in a support role.

In August 2006 Mr Williams made the application for a police injury pension with which this case is concerned, and whose progress I will have to deal with in more detail in this judgment. He also pursued a claim against the Authority under the Disability Discrimination Act 1996 in relation to the circumstances of his compulsory retirement, which was settled out of court. Fortunately, Mr Williams found alternative employment with the Highways Agency, for whom he continues to work.

The documentary evidence as to events from April to November 2001

It is common ground that Mr Williams did not pursue any formal complaint or grievance in relation to his alleged treatment over this period. The explanation which he gave the Board as to why he had not done so was that at the time there was a culture of not complaining, that he was frightened as to the possible consequences of making a complaint, and that he had not sought advice from the Police Federation.

It is also common ground that the first recorded entry in the occupational health records which are before the court relates to an initial review on 14 March 2002. This noted that Mr Williams had been "posted out to neighbourhood section Southport, didn't feel comfortable, asked for training, was not provided training, was given probationer to tutor, didn't have the confidence, anxiety started to build up". The occupational health records also include a report dated 18 February 2002 from Pauline Fullam, a psychologist from whom Mr Williams had received counselling from early January 2002, which includes the following comment:

The personnel file relating to Mr Williams and dating from 2001 was not produced to the Board. There is an issue about this. In its original decision the Board identified that this might contain relevant information in relation to the issues of support and training, and said (page 14) that "a means of addressing this would have been to ask the Police Authority to present a record of Mr Williams personnel file for 2001” and to invite submissions upon it. However after the quashing of its original decision it appears that no one, whether Mr Williams’ representative, the Authority or the Board itself took any further steps in that regard, and the Board proceeded to its revised decision in September 2010 without the benefit of whatever might be contained in the personnel files.

The Authority’s occupational health unit referred Mr Williams to Dr Britto, a consultant psychiatrist, who saw Mr Williams and produced a report in May 2002, diagnosing him as suffering from a moderately severe depressive episode with marked anxiety. The section headed "symptomatology" records what Mr Williams told Dr Britto about his symptoms, but it does not appear that Dr Britto asked, or Mr Williams volunteered, anything about what had caused those symptoms to occur. The same is true of the subsequent reports produced by Dr Britto.

There was however a further report produced by Dr Moosa in March 2004. Dr Moosa was also a consultant psychiatrist who saw Mr Williams and produced a report at the request of the occupational health unit. Dr Moosa took a detailed history from Mr Williams, including the following in relation to the events of April to November 2001:

It is clear that this account includes reference to requests for training which were rejected and to Mr Williams' perception that his employers were not listening to his concerns. It also refers to Mr Williams “struggling to cope” with his new duties. This is also consistent with a report produced by a Mr Ganley, a clinical psychologist, dated 22 April 2004, who in the course of recounting the history given by Mr Williams at the appointment, wrote:

The claim for police injury pension

The application was made by Mr Williams in August 2006, using a standard form of "injury award questionnaire" produced by the Authority for that purpose. Section A of the questionnaire asked Mr Williams to provide details of the incident leading to the injury which he linked to his ill-health retirement. He answered those questions by referring to an attached statement, which as relevant read as follows:

“When neighbourhood policing was introduced in April 2001 I was posted to Southport East Neighbourhood working on general police duties under the supervision of Inspector Fitzpatrick and Sergeant Hilton. Whilst I had been away from general policing a number of things had changed and in order that I could perform my new role efficiently and correctly I asked my supervision for training to address these matters. My requests regarding training fell on deaf ears. I therefore went back out "on the streets" insufficiently equipped to perform the role. This position made me anxious for my safety and my ability to perform my role.

During the following months no training was forthcoming and I found myself becoming more and more anxious and depressed about my position at work, as no formal training was being put in place. During this period I was ordered to perform the role of tutor constable as well as my job as a neighbourhood officer. Even though I protested my own suitability I was still pressurised into training a probationer. The position I was put in made me fearful for my safety and welfare and for that of the probationer I was tasked with training.

All of these factors led to me suffering from insomnia, anxiety attacks and bouts of deep depression.

When these symptoms arose I spoke with my supervision on three separate occasions. Each time telling them that I was suffering with the above symptoms and asking for their help. Again my requests fell on deaf ears. In November 2001 I suffered from a nervous breakdown brought on by the above circumstances and since then I have been on various medications."

It is clear therefore that Mr Williams was contending that he suffered anxiety and fear whilst “out on the streets”, as he put it, because he was performing his new role as a community officer, including the role of tutor constable, without having received any training for the former and whilst unsuitable – as he saw it – for the latter. He was clearly contending that it was this which had caused his symptoms of “insomnia, anxiety attacks and bouts of deep depression”. In my judgment this is factually very different from a contention that it was the refusal to provide training and/or the insistence that he undertake the tutor role, and/or the manner in which those communications were conveyed and/or the change in his treatment as a result of him having expressed his concerns, which caused him anxiety and fear, or which led to his symptoms. That is relevant because if it was the latter then it would be necessary to investigate whether or not those factual assertions were made out, and -- perhaps -- to consider whether or not it could be said that he would have been affected by this as much when he was not performing his duties as whilst he was.

As required by the 2006 Regulations, the Authority referred the question as to whether or not Mr Williams' disablement was the consequence of an injury received in the execution of duty to an SMP, Dr Vincenti. As I have already said (see paragraph 4 above), Dr Vincenti produced a report in June 2007 which concluded that it was. There is no suggestion from the papers before me that the Board was provided with or referred to the Vincenti report when reaching its decision. When reading it one sees that Mr Williams is referring not only to the effects of working on front line duties without training and tutoring a difficult probationer, but also the effects of how he was being treated by his superiors, and that he is attributing the anxiety and stress he suffered to the effects of both. One sees for example that in paragraph 5.4 Dr Vincenti refers to Mr Williams lying awake at night “anticipating problems at work the next day”, without distinguishing between the two.

As I have also already said, following the first judicial review proceedings it was agreed that the question should be referred to a replacement SMP, and Dr Staley saw Mr Williams and produced a report dated 18 February 2009. It is clear from the report that Dr Staley was provided with a “comprehensive file” by the Authority. It is also clear that this was before the Board (see for e.g. p.6), and that it contained amongst other things observations from Inspector Fitzpatrick (which are summarised at p.6) and Sergeant Hilton (which are not summarised, but which counsel both recall say no more than that he had no recollection of the incidents complained of by Mr Williams), but I have not seen a copy of that file.

What Mr Williams was complaining about to Dr Staley was that: (a) from the time of his move in April 2001 he had been bullied by the inspector and sergeant, to some extent as a response to his asking for help; (b) things “came to a head” due to witnessing a fatal road traffic accident in September 2001 – this was the start of his progressively worsening loss of sleep, but that he was also complaining that he was uncomfortable and pressurised as a result of front line work without training and tutoring. It is reported that it was the “accumulation of the events” that he suffered a nervous breakdown in November 2001. Again, one sees, that it is the combination of the effects of the work which Mr Williams was undertaking and his treatment by his superiors which are said to have caused his psychiatric illness. It is noteworthy that Dr Staley’s opinion began by stating that ‘Mr Williams became psychiatrically unwell in the context of moving from a station-based role to operational policing”.

As I have said, Mr Williams was dissatisfied by Dr Staley's decision, and exercised his right to appeal to the Board. In accordance with the procedure, a hearing date was set for 23 September 2009, and Mr Williams’ adviser, Mr Leyland the secretary of the Merseyside Police Federation, produced written submissions dated 28 July 2009. He attached the reports from Ms Fullam, Dr Britto, Dr Moosa and Mr Ganley.

In my judgment the case as advanced to the Board in these submissions was a fundamentally different case to that which had been advanced in the Questionnaire. Thus under the heading ‘Factual background’ there is no reference at all to Mr Williams suffering from any particular symptoms whilst performing his duties because he believed that he had not been trained and/or because of having to tutor the probationer. Instead, the references all relate to Mr Williams suffering symptoms due to his treatment at work, brought to a head by witnessing the fatal road traffic accident.

The submissions contain extracts from the occupational health records to which I have referred above, and to the Ganley report, both of which make reference to the problems associated with the new role and the tutoring responsibility, but this is not developed in the submissions. The summary section reads as follows:

Although Mr Lock suggested that paragraph 2 is a reference to the effect on Mr Williams of performing his new role without training, it seems to me to be quite clear that the complaint concerns the refusal of his requests for re-training, and on any view paragraphs 4 and 5 are quite specific as to the ‘main cause’ being advanced.

This was a relatively brief submission, which did not specifically take issue with the factual case advanced by Mr Williams, save to say that "there is no evidence available to confirm that ex-constable Williams was bullied”. The argument advanced appears to be that because in Dr Staley's opinion Mr Williams became unwell when transferred from a station-based role to operational policing, that was an injury due to a management re-organisation which, on the basis of the authority of R (Edwards) v Police Medical Board [2005] EWHC 1780 (Admin) relied upon by the Authority, could not therefore be treated as an injury suffered whilst on duty.

This can be discerned from the full and comprehensive account contained in the decision itself. It is clear from page 2 that the Board understood Mr Williams’ case to be that his psychological impairment was due to bullying and lack of support and training. It is clear from the oral submission made to the Board by Mr Leyland, Mr Williams’ representative, that this was indeed Mr Williams’ case – that is evident from the whole of the opening submission. As well as the submission recorded in the first bullet point at page 5 there is also the first bullet point on page 3 to the following effect:

It appears that Mr Leyland was concerned to contest the case as advanced by the Authority in its submission, so that one sees in the second bullet point on page 3 and again in the first bullet point on page 4 that Mr Williams' case was that he was not complaining about the redeployment to front line policing as such. However, perhaps unfortunately in the light of what happened, the oral presentation followed the written submissions in failing to make any reference to the impact upon Mr Williams of being required to work in the front line role without training and with a probationer.

The next stage was that the Board members questioned Mr Williams. The final exchange is particularly significant (see page 6), where in response to the Board asking “whether there was uncontested evidence within the case bundle to support Mr Williams' position”, Mr Leyland referred the Board to the comments made by Inspector Fitzpatrick which were included in the bundle produced to Dr Staley, to the effect that a training need had been identified in September 2001, but that Mr Williams went off sick before the training plan could be implemented. Mr Leyland also referred the Board to the comments made by the reviewing clinicians in the reports.

The next stage was the Authority’s submissions. At this stage the point was taken that since Mr Smith had diagnosed Mr Williams as suffering from bipolar disease, which could not be linked in any way to an injury suffered on duty, and since that diagnosis was a final decision, that was effectively the end of the case. It was also noted that "the officers that were alleged to have been involved in bullying deny any bullying”, so that there was clearly a factual issue on that point. There was also an assertion that ongoing training would have been provided.

Then Mr Leyland had the opportunity to respond. The first bullet point on page 7 is a response to the case advanced by the Authority in reliance on Edwards. Mr Leyland's contention, as recorded, was "that the move to operational policing was not the issue, but the issue was the lack of relevant training to equip him for the move as well as the bullying noted above." The fourth bullet point on page 4 records Mr Leyland clarifying that it is not contended that the fatal road traffic accident either caused or substantially contributed to his illness, his contention being that "his disablement is underpinned by bullying and harassment and therefore that this can be considered as an injury on duty”.

Mr Lock has drawn my attention to the fact that in his opening submissions Mr Leyland identified that the definition of bullying contained within the Authority’s own document included "asking people to undertake work which they feel incapable of or for which they are not well equipped", and that this was not contested by the Authority (see first bullet page 8). He submitted, therefore, that in context, the allegation of bullying included an allegation that Mr Williams was required to undertake frontline services without receiving proper training.

The next stage in the procedure was that the Board questioned the Authority’s representative. In that exchange it was noted that "enquiries had been made of the relevant Sergeant and Inspector, at that time there were no formal complaints made against them and thus the situation had not been investigated further".

Following final comments from both sides, the Board recorded the results of the clinical assessment performed by the consultant specialist member of the Board. In the opinion of the specialist member, Dr Smith had been wrong to diagnose bipolar affective disorder; in his opinion the diagnosis was that of a "moderate depressive episode".

At the foot of page 9 the Board directed itself as to the "key questions to be addressed" in the following terms:

That self-direction has not been criticised by Mr Lock and, in my judgment, it is impeccable. The real question in this case is whether or not the Board in fact decided the case on the basis of that self direction.

The Board went on to refer to the relevant regulations and then to refer to no less than 10 previous decided cases, which they considered in some detail. They concluded, with some justification, if not understatement, with the comment that:

The Board began by deciding, without obvious difficulty, that the diagnosis of bipolar disease was not supported by the evidence, and that they diagnosed Mr Williams as having suffered from a depressive illness with anxiety. They then turned to the issue of causation. They began by expressing themselves satisfied that "on the balance of probabilities Mr Williams illness was related to the workplace exposures". It is clear in my judgment that all they were doing at this stage was discounting any cause prior to 2001 and any cause outside work. It is clear from the following (second) paragraph on page 14 that they were aware that this was only the starting point, because they said that they would have to be satisfied that "the workplace exposures caused or substantially contributed to Mr Williams’ illness, and go on to determine whether these workplace exposures qualify to be considered as being received in the execution of duty".

They then said that they "agreed that proven bullying or harassment within the workplace would be considered as injuries received in the execution of duty. So would any proven managerial failure or lapses of duty of care that have had a direct causative relationship to the illness".

Mr Lock does not quarrel with the first proposition, although he did go further and submit that on the basis of the decision of Brooke J (as he then was) in R v Fagin & another ex p Mountstephen (26 April 1996) that any injury caused by bullying or harassment by Mr Williams superiors in the workplace, if perceived as such by Mr Williams, even if not actually amounting to such, would also be an injury received in the execution of his duty. I shall have to consider the merits of that submission later in this judgment. So far as the second proposition is concerned, Mr Lock submitted that the Board began to fall into error at this point in concentrating its attention on the question of whether or not Mr Williams' managers were at fault in relation to what is obviously a reference to the lack of training, rather than on the question of the effect on Mr Williams of having to undertake his new front line policing role without, as he saw it, appropriate training.

The Board continued that it was "mindful of its quasi judicial position in making this sort of determination and will normally tend to rely on robust evidence for example outcomes of disciplinary enquiries, complaints investigations, grievance or tribunal findings to help in reaching such conclusions. This helps avoid favouring the perceptions of one party over that of the other. In this instance there is a paucity of the type of evidence that the board would normally rely on." Mr Lock criticised this passage as showing that the Board appeared to consider Mr Williams' evidence in his submissions and answers to them at the hearing as amounting to "perceptions" as opposed to evidence. I do not agree with that submission, because it seems to me that the Board is referring to Mr Williams’ “perceptions” as meaning his evidence as to what he perceived. However this passage does appear to demonstrate that the Board was looking in support for findings of other bodies, as opposed to other evidence, documentary or otherwise, which could corroborate the evidence of the individuals concerned.

The Board then turned to "examine the series of events alleged to have occurred in 2001". They observed that there was a difference between Mr Williams’ account of events and that of Sergeant Hilton and Inspector Fitzpatrick. Mr Lock’s initial position was that the only evidence before the Board was that of Mr Williams, but it seems to me to be plain that the comments of the other two men were also before the Board and were evidence to which the Board was entitled to have regard, there being no requirement either that evidence had to be contained in a witness statement or that witnesses had to be called to attend the hearing. They continued as follows:

“There seems to be some agreement on the presence of the training deficit which had been identified before Mr Williams went off sick. Inspector Fitzpatrick's comments are not quite clear about the precise nature of these training needs. His inference appears to be that the training needs arose as a sequel to a complaint that was made about Mr Williams. Though Mr Williams notes that he requested training early on during the series of events, this request is not corroborated by any other basis other than his perceptions and secondary evidence from people to whom he has related these perceptions and concerns. He was already off sick at the time he related these concerns to treating clinicians. Ideally there would have been a formal complaint made during the series of events in 2001 or at least a formal record of a discussion highlighting this. The Board is thus not able to find the sort of evidence that would clearly validate Mr Williams perceptions.

The dispute here centres on the facts and the Board needs to ensure that each party provides the clearest possible evidence in support of their case, and allows each party to comment on the others evidence. The Board would also be obliged to test the evidence in the light of their medical knowledge and reasoning and any advice they seek. The Board should come to its decision on these issues as well on the balance of probabilities.

There is a high consistency in the clinical records following Mr Williams’ illness and it is clear that he believed that he was not well supported and was being bullied. The Boards’ preliminary view is that there may be additional information to make its decision easier as regards the level of support and identified training need or deficit. The Board feels that this is perhaps better explored by having more information around that period. Thus the Board would have valued sight of Mr Williams’ personnel files especially with regards to the relevant training needs that are related by Inspector Fitzpatrick. A means of addressing this would have been to ask the Police Authority to present a record of Mr Williams' personnel file for 2001 (containing records of his appraisals, meetings with Supervising Officers and any agreed training plans or comments) and invited additional submissions from the Police Authority and the Appellant on these within a specified period to allow the Board to reach a final determination of whether or not Mr Williams’ permanent disablement from the duties of police constable was due to an injury sustained in the execution of duty.”

Without reaching a conclusion on this point, the Board then turned in its original decision to consider the issue of Dr Smith’s earlier diagnosis, and considered that it was bound by this diagnosis and this that they had no option but to decide the case against Mr Williams on that basis.

Following the quashing of its original decision the Board reconvened. Instead of producing a fresh report, it simply produced an addendum to their original report. The section entitled "reconsideration following judicial review" effectively carried on where the Board had left off above, save for removing the concluding section dealing with Dr Smith. They said in terms that their "view remains as argued” in the previous report save for the exclusion of the final section in relation to the consequences of Dr Smith's diagnosis. They continued, and concluded, as follows:

“The essence of the Appellant's argument is that his permanent disablement was due to a failure to provide him with proper training and support as well as bullying and harassment within the workplace.

The Board had formed an opinion that whilst his permanent disablement was related to his experiences in the workplace or perceptions thereof, the Board must be satisfied that there is evidence to support the arguments put forward, and must not simply take one party's view over that of the other.

The Board had concluded that the evidence before it was insufficient to conclude that Mr Williams' perceptions of inadequate support and training were valid. The Board was required to reach its decision on the basis of evidence presented to it at the appeal, either in the written bundles or in the verbal submissions. It may well be that other evidence exists however this was not presented by either side at the time. The Board empathises with Mr Williams but finds that in the absence of clear evidence to validate his perceptions, it cannot find as a matter of fact that he was bullied and harassed in the workplace, nor can it find that he had inadequate support and training. Thus the only conclusion that the Board can come to is that his permanent disablement was not due to an injury received in the execution of duty. His appeal therefore fails."

Finally, I must refer to the exchange of correspondence which followed the promulgation of the Board’s fresh determination. By its letter dated 27 October 2010 the solicitors instructed by Mr Williams set out a number of criticisms of the decision and asked the Board either to reconsider their findings or to provide substantive reasons for refusing to do so. That produced a detailed response by letter dated 25 November 2010. It has not been suggested by Mr Lock that I should not have regard to the contents of the letter; indeed he invites me to have regard to its content as shedding an insight into its decision making process. He also however – correctly in my judgment - suggests that I should be cautious about accepting any additional reasons advanced in that letter, citing the decision of Stanley Burnton J (as he then was) in R (Nash) v Chelsea College of Art and Design [2001] EWHC Admin 58 for a helpful statement of the relevant principles.

I agree with Mr Lock that the letter does provide some insight into the Board's decision making process. This begins in paragraph 2 of the response, where in relation to the argument about training deficit the Board makes it clear that it was only prepared to proceed on the basis of “evidence that confers agreement between both parties”, which they identify as what was said by Inspector Fitzpatrick, even though they had some difficulty in "correctly interpreting" that evidence. It continues in paragraph 5, where in dealing with the bullying issue the Board said that "the issue with regards to bullying behaviour by other officers was that both parties offered very different accounts and the Board format does not allow for extensive investigations to validate accounts of bullying behaviour". That point was reiterated in response in paragraph 7, where the Board also reiterated its concern to be cautious about "basing decisions on one party's perception of version of events at the expense of the other parties”, and suggested its judgment could have been helped by the provision of additional information. All of these points appear to have been synthesised in the concluding passage of its response in paragraph 8, where it said this:

The meaning of this final passage is not entirely clear to me. It does however appear, when read with the rest of the letter, that the Board’s approach was that it was only prepared to accept evidence from Mr Williams which was either proved by independent evidence or not disputed by the Authority. It appears that the reference to seeking additional information is a reference back to the difficulty they had in interpreting what Inspector Fitzpatrick had said. However the end result appears to have been that in the absence of additional information they simply took what Inspector Fitzpatrick said at face value and decided the issue against Mr Williams on that basis. Mr Lock submitted that this demonstrated that the Board had effectively failed to discharge their fundamental obligation of reaching a decision on disputed questions of fact. He submitted that the Board appears to have taken the view that it was not able to determine these disputed issues given what it described as it is "format" and therefore had simply proceeded on the basis that it could only decide the case on undisputed evidence, which in effect meant rejecting everything said by Mr Williams unless proved by independent evidence or admitted by the Authority.

It is convenient to deal with grounds 3-5 inclusive first, which are that:

Mr Lock submitted that article 6 was engaged in hearings before the Board, relying on the decision of the European Court of Human Rights in Benthem v The Netherlands [1985] ECHR 8848/80. Although in his skeleton argument Mr Bassett had not accepted that article 6 was engaged, that was not a point which he pursued in oral submissions. In any event, Mr Lock only placed reliance on article 6 to support his argument that the Board was obliged to conduct its hearings in a way which was fair to both parties. He submitted that the same obligation arose as a matter of public domestic law, and it is clear from the Home Office Guidance that the board is performing a quasi judicial role and must act fairly to both parties. Accordingly, it is clear on any view that the Board was required to act fairly. It is also clear from the Guidance, which states expressly what would be implied, that the Board is required to reach its decision on the civil balance of probabilities, and to reach a decision on the evidence before it.

It is useful to summarise the evidence which was before the Board. It had evidence from Mr Williams, both in writing and confirmed orally. It also had evidence from Inspector Fitzpatrick, although only written, apparently limited to the issue of training, and seemingly not entirely clear. It also had evidence from Sgt Hilton, although apparently limited to his saying that he had no recollection of the events in issue. It had documentary evidence in the form of the entries in the occupational health file, which were consistent with Mr Williams’ case about the lack of training and the lack of management support, the new work role, the tutor problem and the effects of all this upon him, although it is true that they made no explicit reference to bullying or harassment. It had the reports from Dr Britto, although they provide no assistance one way or another, because they do not seek to record Mr Williams' recollection of events. The reports from Dr Moosa and Mr Galvin are consistent with the entries in the occupational health file. The statement accompanying the completed questionnaire, together with the further medical reports, are broadly consistent with Mr Williams' case in relation to a lack of training, lack of support, bullying and harassment. In terms of missing information, the Board had no evidence relating to any formal complaint or grievance procedure, but an explanation from Mr Williams as to why he had not initiated either process at the time. The only other missing information identified as possibly having a bearing was the personnel file, which was clearly within the Authority’s possession.

There was a clear dispute of fact between Mr Williams and the Authority in relation to the factual allegations of training, lack of support, bullying and harassment. It is clear in my judgment that the Board was obliged to decide these issues. In doing so it was required to consider, evaluate and to test the evidence and arguments, and to provide reasons for its conclusions in its report. In my judgment, it follows that to comply with this duty the Board was obliged to reach a decision on whether or not it accepted Mr Williams' evidence in relation to these disputed factual allegations and, if not, why not. What it could not do, in my judgment, was to abdicate its responsibility to make a decision by relying on the absence of independent evidence to support Mr Williams' case as justifying a decision to proceed only on the basis of evidence which was specifically accepted by the Authority. That is particularly so in this case, where:

I do accept that it would have been open to the Board, properly directing itself and acting reasonably, to have reached a decision not to accept Mr Williams' evidence where it contradicted with that of the Authority. If, for example, it had referred to the inconsistencies in the accounts given by Mr Williams over the years, concluded that it did not accept his explanation for not instigating any formal complaint or grievance procedure, and made a clear finding that for those and others reasons it did not accept his evidence, it may well be that Mr Williams would have had no grounds for complaint in this regard. However, that is not in my judgment how it dealt with the case. The way in which it dealt with the case appears to have been that in the absence of independent evidence to support Mr Williams' case, regardless of the reasons why that evidence was not available, it regarded itself as unable to resolve any factual disputes as between Mr Williams and the Authority, with the result that it had no option other than to decide the case on the basis of the factual allegations made only insofar as they were not disputed by the Authority. It does appear from the subsequent letter that the Board appears to have considered that it was not in a position to resolve complicated issues of disputed fact, given the limitations of the procedure which it adopted. Whilst I have some sympathy with the difficulty which a tribunal in its position must have experienced when asked, as a medically qualified panel without the benefit of legal assistance, to determine these issues in the context of a procedure designed principally to resolve medical issues, that does not permit me to excuse a failure to decide the questions which it was required to decide, or to provide reasons for the decisions which it was required to make.

I am of course acutely conscious that a court exercising this jurisdiction ought not to treat the decisions of a non-legally qualified tribunal such as the Board as if they were judgements of a first instance court the subject of an appeal. I must make proper allowance for the fact that the Board is not comprised of legally qualified members and is not to be expected to express itself as a legally qualified tribunal would be expected to do. However, as I have said, there is in the end a fundamental difference between making a decision, doing the best one can and expressing one's reasons as best one can, and not making a decision. In my judgment this cannot be said to be a case where the Board in fact did reach a judgment but simply expressed it in a way which does not read as felicitously as it might. Instead it failed to make a decision on the disputed factual issues as between Mr Williams and the Authority. That produced a result which was unfair to Mr Williams, and which was not a decision on the civil balance of probabilities. Accordingly, I allow the claim on these grounds.

These grounds can also be taken together. They are that:

The essential complaint made by Mr Williams here is that the Board became sidetracked into deciding whether or not the complaints of lack of training, lack of support, bullying and harassment had been made out, rather than deciding on the key questions which they, in my judgment correctly, identified they had to answer at the foot of page 9 of their report.

As I have said, when comparing the case as advanced in the questionnaire and the case as advanced before the Board, it is clear that Mr Williams chose to change the case previously advanced in the questionnaire, and to present a case to the Board which relied upon the complaints of lack of training, lack of support, bullying and harassment as being the cause of his psychiatric illness. As Mr Bassett submitted, in normal circumstances it would not be open to a claimant to complain about the failure of a tribunal to decide a point when that point had not been raised by the claimant has a point to be decided by the tribunal.

However, in my judgment the circumstances of this case are unusual. As I have said, the case originally advanced by Mr Williams was that it was the anxiety and fear which he experienced whilst performing his front-line policing role without training, exacerbated by with tutor point, which had caused his symptoms of insomnia, anxiety and deep depression. It seems to me to be quite clear from the authorities (I refer in particular to the cases of Kellam and Stunt identified in paragraph 6 above) that if the Board had accepted that case, it may well have concluded that Mr Williams had established that he was permanently disabled as a result of injuries received in the execution of his duty. That case was still the case which he advanced to Dr Vincenti and Dr Staley, albeit that he was also advancing the complaints of lack of training, lack of support, bullying and harassment. The case advanced to the Board in the submissions however concentrated solely on the other complaints. Nonetheless, when before the Board the Authority argued that it was the decision to transfer to front-line policing which caused the symptoms, as I have said Mr Leyland's riposte, as recorded in first bullet point on page 7 was "that the move to operational policing was not the issue, but the issue was the lack of relevant training to equip him for the move as well as the bullying noted above." It seems to me that this was, at least arguably, returning - at least in part - to the original case.

If that was Mr Lock’s only point, it would be difficult to criticise the Board for not picking up that the case as advanced originally had not been formally abandoned and had been arguably revived in the course of the hearing. However, it does seem to me that Mr Lock is right to submit that the point goes further than that. As I have said, at the top of page 14 the Board declared itself satisfied that "on the balance of probabilities Mr Williams' illness was related to the workplace exposures". It went on to conclude that it was not related to proven lack of training, lack of support, bullying or harassment. It did not, however, reach any decision as to what workplace exposures it was related to. It would appear that the only other contenders were: (a) the anxiety and fear which he experienced whilst performing his front-line policing role without training; (b) the effects of the decision to transfer to front-line policing; or (c) his perception, albeit unsubstantiated, of lack of training, lack of support, bullying or harassment.

In my judgment, because the Board was being asked to decide whether the disablement is the result of an injury received in the execution of duty, it was obliged to consider and decide what were the injuries which caused or substantially contributed to the disablement, and whether one or more of those injuries were received in the execution of his duty. Simply to decide that Mr Williams' illness was not caused by proven lack of training, lack of support, bullying or harassment did not decide the question which the Board had to decide. If the Board had conscientiously answered the key questions which it posed itself at the top of page 9, considering the totality of the evidence before it, its answer may well have been that the anxiety and fear experienced by Mr Williams whilst performing his front-line policing role without training (it being common ground that no training was in fact provided, even if the question as to when and in what circumstances it was requested was disputed) was something which had either caused or substantially contributed to the disablement and which was an injury received in the execution of his duty. By not going on to consider this point it deprived Mr Williams of the opportunity of succeeding.

It follows, in my judgment, that Mr Williams succeeds on these grounds as well. I would like to emphasise that in coming to this conclusion I am not in any way seeking to criticise the Board, no more than I am seeking to criticise them by my decision on grounds 1-3. The question which they had to decide under regulation 30(2)(c) is a deceptively simple one, which in this case raised a number of complex factual and legal issues. They were in the position of having to decide them as non-legally qualified persons without the benefit of legal advice, without the benefit of legal representation, and indeed to some extent at least being positively confused by the way in which the cases advanced by both Mr Williams and the Authority changed from time to time. Nonetheless, the obligation upon the Board to decide that question is a strict one, and no matter what sympathy I have for the Board, if they have not - as I have decided they have not - fully and properly answered the question which they had to decide, then the decision cannot stand.

This ground is simply that the Board’s decision was irrational. Although the argument as advanced by Mr Lock in his skeleton argument was put on the basis that the only reasonable decision which the Board could have come to was to have accepted Mr Williams' evidence and thus concluded that he had been the victim of a lack of training, lack of support, bullying and harassment, in my judgment that argument cannot stand because, as I have already said, it seems to me that it would be open to a Board, acting rationally, to reject Mr Williams' evidence so long as that was a decision which was clearly made and properly reasoned. Furthermore, since I have identified at least 4 possible contenders for relevant workplace exposures, it cannot in my judgment be assumed that it would not be open to a Board, acting rationally, to conclude that those which caused or substantial contributed to the psychiatric illness were not ones which were suffered in the execution of duty.

However the further argument which was advanced in oral submissions was that, even if the Board had concluded that it was Mr Williams' unsubstantiated perception of being the victim of a lack of training, lack of support, bullying and harassment which had caused or substantially contributed to the psychiatric illness he suffered, nonetheless that would suffice to carry the day for Mr Williams on the basis of the Mountstephen case to which I have already referred. There are two reasons, however, why I am unable to accept this submission.

The first reason is that since the Board did not in fact purport to find that an unsubstantiated perception either caused or substantially contribute to the illness, it cannot be assumed for the purposes of this judicial review that this is what they must have found.

The second reason is that in my judgment the decision in Mountstephen cannot bear the weight which Mr Lock seeks to place on it. In short, that was a case where the applicant suffered a psychiatric illness while he was working for the Metropolitan Police, in which he had created a fantasy world for himself because he considered, with no obvious basis, that his concerns about an aspect of the training provided to police probationers had been improperly ignored. The argument advanced by the defendant was that the illness had not been suffered whilst working for the police, because he had been suffering from an illness all along, which was merely exacerbated by what had happened at work. Importantly, however, the defendant did not argue in that case that even if the illness had been suffered whilst working for the police, it was not suffered in the execution of his duty. Accordingly, Brooke J having found against the defendant on the argument which was advanced, it was not necessary for him to consider an argument which had not been advanced. Accordingly, it cannot be said in my judgment that this case is authority for the proposition that an injury can be said to have been sustained in the execution of duty when it results from an erroneous perception of improper treatment by one's superiors. In my judgment it would run counter to the principles expounded in Kellam and accepted in Stunt if a psychiatric injury caused by an erroneous perception that certain events had occurred in the course of the police officer’s employment, when in fact no such events had occurred, could amount to an injury received in the execution of his duty.

Accordingly, I dismissed the challenge on this ground.

The decision of the Board must be quashed. Counsel were agreed before me that if this was my decision it would be necessary for the question to be determined by a fresh Board, given the problems which have arisen with the decisions of this Board on two occasions, albeit that as I have sought to explain this decision does not involve any personal criticism of them. I will order accordingly.