Chief Constable of Avon And Somerset Constabulary v Police Medical Appeal Board

This claim for judicial review is brought by the Claimant against the decision of the

This claim proceeds with the permission of Jay J who noted that the Board obviously struggled with the applicable law and appeared to make a finding of fault; that the core reasoning was confined to only three paragraphs and that arguable criticism could be made of those few paragraphs. He acknowledged that after full argument the Court might conclude however that conclusive findings of fact had been made the Board.

The Claimant was represented by Mr George Thomas and the Interested Party by Mr Colin Banham. I am grateful to them both for their careful and thorough submissions.

I set out below the uncontroversial background which I have drawn from the chronologies prepared by the parties.

Mr Middleton joined the Avon and Somerset Constabulary on 5 December 1994 and was ill health retired on 20 April 2016. In his later years in the force he suffered a number of episodes of ill health, mainly relating to his back. It appears that his low back pain became a real problem for him in early 2010 and between February 2010 and November 2010 he was signed off work with severe low back pain and underwent two spinal surgical procedures. He attended an occupational health assessment on 7 September 2010 when it was recommended that he return to work on restricted duties only. In April 2012 Mr Middleton requested that consideration be given to his taking ill health retirement. He was assessed and found to be permanently disabled from performing ordinary duties of a constable due to his prolapsed intervertebral disc but a decision was made that he should not be retired on medical grounds, instead his role would be modified to relieve him of “front line” duties. Mr Middleton was absent on sick leave between August and September 2012 due to chronic low back pain and an acute stress reaction.

Following his return to work in October 2012 he performed a series of jobs of a temporary nature. Overall from September 2010, Mr Middleton performed the following series of duties:

In early 2015, Mr Middleton indicated that he wished to seek early retirement on medical grounds and was therefore assessed by Dr Johnson a Selected Medical Practitioner and by Professor Greenberg, a psychiatrist. Professor Greenberg reported that Mr Middleton had an emotional unstable personality disorder of the borderline type and that he should be regarded as permanently disabled for policing duties as a result of pervasive mental health difficulties (chronic adjustment disorder). In December 2015 in a joint Johnson/Greenberg determination, it was recorded that Mr Middleton was not expected to be capable of returning to work and that there was no process or adjustment which might remedy or ameliorate Mr Middleton’s absence from work. On 30 April 2016 he was medically retired and formally left the force.

Mr Middleton made an application for an injury on duty award. On 22 December 2016 Dr Johnson provided a report which focussed upon whether any of the injuries were received in execution of his duty. He concluded that none of the injuries complained of were the result of an injury on duty. The persistent personality traits were by their nature not the result of any incident or any injury (whether in the execution of duty or otherwise). Concerning the chronic adjustment reaction, he recorded that Mr Middleton had been dissatisfied with the decision not to grant him ill health retirement, that this reaction to his circumstances were not unexpected given the underlying and long standing personality issues and that Mr Middleton’s mental health issues following his redeployment were the result of his lack of control over his situation, in combination with his vulnerability due to his personality disorder. He concluded that the chronic adjustment reaction was not due to an injury received in the execution of duty and so the application for an injury on duty award was rejected.

Mr Middleton submitted his appeal against that decision on 29 April 2017. It was that appeal which was before the Board on 3 May 2018. Mr Middleton asserted that all three disablements were the result of injuries in the execution of his duty.

The Board comprised four members: two occupational health physicians, a consultant psychiatrist and a consultant orthopaedic surgeon. The Report which is dated 17 May

In the background to the case, the Board recorded that following Mr Middleton’s return to restricted duties in the autumn of 2012 he “was moved from job to job whilst attempts were made to find him a permanent position. However, a permanent job was not found for him and, after complaints from the appellant, Carol Wood (HR professional) apologised to him…he had to repeatedly learn new roles and often he felt there was no training. Additionally he was not able to utilise the adaptations put in place for him because of his back pain, which included the provision of a special chair. The Appellant argued that despite a restriction from occupational health on driving he was posted to a role one and a half hours drive from his home. The appellant’s psychological health was disrupted by these events and there then followed a series of suicidal ideations when he threatened to jump from the Clifton Suspension Bridge”. The Board also recorded that Mr Middleton “considers that the failure to provide him with a permanent meaningful role which was contra to PMP Policy and not retiring him led to the breakdown in his psychological health”. It noted that Professor Greenberg had commented that the adjustment reaction had come from Mr Middleton’s “increasing frustration at not being ill health retired and found an appropriate role, set against the background of what amounted to persistent personality traits that left him vulnerable to develop psychological ill-health over and above those that would be expected by an ordinary individual.”

Although a formal psychiatric assessment was not undertaken, the Board asked questions of Mr Middleton with a view to forming its own impression of his mental state. The presence of obsessional personality traits was recognised. It formed the view that “The presence of ongoing uncertainty within his role led to a chronic level of distress in the context of his underlying personality traits. The lack of clarity and delays in him being allocated a suitable role, was a significant cause of the adjustment disorder which became more entrenched as the uncertainty was left unresolved, and which manifested itself in the form of anxiety and mood symptoms”.

There followed a “Detailed Case Discussion” in which it made the following findings of fact:

The report continued:

“In this case, it is our opinion that had he been found a role of a ‘permanent’ nature within his skills base, he would not have developed an adjustment reaction that was permanently disabling (although we accept Professor Greenberg’s view that it could well have happened at some time in the future, if it conflicted with his underlying personality traits).

Here is a situation where an officer was moved not once or twice but eight times in a period of four years. He was given a post for which he did not feel he had been given the appropriate training but in other posts he was congratulated on the work he had done but was nevertheless moved. This set (sic) against a policy which appears to indicate that if an officer is retained in service he should be found a permanent meaningful role. This was a reasonable expectation for this officer and he had fully complied by returning to work and engaging with the organisation which in his terms ‘let him down”.’

“We are not sure that this would be a benevolent view but we do consider that over the time period there were management failures in identifying a suitable role; if there was no role, and they were not prepared to create one for him, then the decision could have been made that the best option would have been to ill-health retire him because of his underlying back problem, If he had been ill health retired at this point, whilst he may have had difficulties in adjusting to no longer being a police officer he would not have suffered the chronic adjustment reaction to work, although he might later have suffered a reaction due to his being ill health retired with his underlying personality traits”.

“In our opinion we conclude that there was a drip drip effect similar to the case of Hudson; it went on for a period of four years and the appellant could see no resolution, as a consequence he developed a chronic adjustment reaction.”

It noted in conclusion that the Board might have “misinterpreted events that occurred whilst on duty with the effect of duty activities causing the ill health. However, case law that we have explored seem to have a discrepancy on these two issues and it will be for a higher authority to settle that difference”.

I can take the statutory framework shortly.

Both Counsel referred me to a large number of authorities which had a bearing on the meaning of “received in the execution of duty” and the nature of the causation test which it involves. In reality, there was no difference between the parties on the principles to be distilled from the authorities, although each sought to emphasise different points along the way. The core principles are set out in Regina (Stunt) v Mallett where the Court of Appeal approved the approach taken by Richards J in R v Kellam, Ex Parte South Wales Police Authority [2000] ICR 632. I summarise them below:

The case law illustrates the application of the principles above to the many and various circumstances in which psychiatric injuries are sustained by those working in the police force. Predictably, the application of the principles has led to cases falling on either side of the line. I do not set out below every case to which I was referred in the Grounds and skeleton arguments, only those which seem to me to be of particular relevance.

It is with these principles in mind that I deal with the Claimant’s grounds of challenge. There are two grounds, but they are intertwined.

Mr Thomas submits that the Board misdirected itself on the law, failing to recognise the existence of the common line of authority establishing the need to make a causal connection between service as a police officer and injury as opposed to simply being a police officer and suffering an injury. He submits that the recitation of authority in the report was scanty and limited only to a few cases; the Board failed to grasp the essential points to be derived from those cases, in particular that a psychiatric injury caused by a perception of being in a dead end job or having no prospects was not sufficient to amount to an injury received in execution of duty.

Set against the factual findings which the Board did make, the Board then failed to address lawfully the effect of those findings. Mr Thomas submits that it is clear from the report that the Board found that the cause of Mr Middleton’s chronic adjustment reaction was his uncertainty and frustration at not having found a full-time job. On this basis, the case falls into classic “Clinch” territory: it is analogous with the claimant who is dissatisfied because he is in a dead end job. On a proper application of the test to the facts as found by the Board, the appeal should have been refused.

Mr Thomas submits that the Board then compounded its failure to direct itself correctly on the legal test by involving the concept of fault. It was argued by Mr Thomas that whether a set of circumstances leading to an injury is the fault of management (or any other body) is irrelevant. In the context of this claim, whether or not Mr Middleton should have been offered a permanent placement sooner, or at all, is irrelevant to the question of whether the injury was causally related to his execution of his duty. Mr

As I commented above, there was when drilled down, no real difference between Mr Thomas and Mr Banham on the relevant legal principles. Mr Banham accepted the statement of the Master of the Rolls in Stunt as the authoritative statement of principle. He made the following points however:

The Board did not identify and state the correct test which it should apply and, unsurprisingly, having failed to state it, it failed to grapple with it. In granting permission, Jay J expressed the view that the Board obviously struggled with the applicable law. I agree. Having misunderstood the case law it appears that the Board took the view that it was entitled to apply a benevolent approach, not to the facts that it was applying to the relevant Stunt test, but to the test itself. This was wrong. The decision of the Board must be quashed therefore on this basis: it misdirected itself on the law and applied the wrong test to the facts.

However, I also accept that the Board fell into further error in finding that there were management failures in identifying a suitable role for Mr Middleton. It appears to me, on a plain reading of the report, that (perhaps because the Board was admittedly troubled by the correct legal approach to take) it buttressed its conclusion by enlisting the admitted management failures in finding Mr Middleton a permanent job in a reasonable period of time. The finding of failures by management were not necessary to resolve any causation issue (those failures had been admitted by the force). Although, the management failures were used in part to support the Board’s view that Mr Middleton had a reasonable expectation of being found a permanent job, the Board went further using the fact of management failures to support “a benevolent view” of what amounts to an injury in the execution of duty. This was wrong. For this reason also, the decision cannot stand and must be quashed.