Rooney, Re Judicial Review [2006] ScotCS CSOH

"H1.(2) Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions - (a) whether the person concerned is disabled; (b) whether the disablement is likely to be permanent....

(4) The decision of the selected medical practitioner on the questions referred to him under this Regulation shall be expressed in the form of certificate and shall, subject to Regulations H2 and H3, be final.

H2 .....(2) If the person concerned is dissatisfied with the decision of the selected medical practitioner as set out in his certificate, he may, within 14 days after being supplied with the certificate .... give notice to the police authority that he appeals against the said decision, and the police authority shall notify the Secretary of State accordingly, and the Secretary of State shall appoint an independent person or persons (hereinafter in these Regulations referred to as the "medical referee") to decide the appeal.

(3) The decision of the medical referee shall, if he disagrees with any part of the certificate of the selected medical practitioner, be expressed in the form of a certificate of his decision on any of the questions referred to the selected medical practitioner on which he disagrees with the latter's decision, and the decision of the medical referee shall, subject to the provisions of Regulations H3, be final."

The 1987 Regulations Schedule H provides the procedure for appeals albeit in very brief form. Paragraphs 3 to 6 provide:-

"3. A medical referee shall appoint a time and place for interviewing the appellant and for any such further interviews or examinations as he may consider necessary and shall give reasonable notice thereof to the appellant and the police authority.

4. At any time before any interview with the medical referee the appellant or the police authority may submit to the medical referee a statement relating to the subject matter of the appeal, and if they so submit a statement they shall send a copy thereof to the other party.

5. Any interview or examination may be attended by-

(a) the selected medical practitioner; and

(b) any duly qualified medical practitioner appointed for the purpose by either party

6. The medical referee shall give written notice to the police authority and appellant of his decision and, if that decision is that he disagrees with any part of the certificate of the selected medical practitioner, shall send a copy of his certificate to the police authority and the appellant".

[8 ] It should be noted that the 1987 Regulations do not provide that the medical referee in giving written notice in terms of paragraph 6 should give reasons. The statutory scheme is silent about reasons. It was not disputed that the medical referee may give reasons if he wishes to do so.

Procedure followed in the Petitioner's case

[9 ] Before the second respondents retired the petitioner on the ground of ill health under the 1987 Regulations, they were obliged to refer the case to a person acting as a duly qualified medical practitioner within the meaning of the 1987 Regulations to consider certain questions. The questions which apply in the present case are (firstly) whether the petitioner is disabled; (secondly) whether his disablement is likely to be permanent. The first question must be considered in the light of Regulations A12(2) which states that:-

".... disablement means inability occasioned by infirmity of mind or body, to perform the ordinary duties of a male .... member of the force....".

The second question must be considered in the light of Regulation A12(1) which states:-

"A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at that time likely to be permanent".

[10 ] These questions were referred to Dr A D Watt, a selected medical practitioner for the purposes of the 1987 Regulations. Dr Watt is an accredited specialist in occupational medicine and he provided a report dated 25 November 2003 (7/10 of process). In said report he set out his medical qualifications, explained that he has taken into account certain guidance which he specified. He stated that he had reports from Dr Warnock (Senior Occupational Health Physician for Strathclyde Police Force), Dr Worrall (a psychiatrist instructed on behalf of the second respondents) and Dr Davidson (the petitioner's general practitioner). These are respectively 7/7, 7/5 and 7/6 of process. Dr Watt's interpretation of these documents was to the effect that they all recommended that the petitioner be discharged from the police force on the basis of permanent ill health caused by personality disorder. He concluded that:-

"..... it was likely .... that (the petitioner's) behaviour and personality were the causes of the difficulties he faced. He had mental health problems that were likely to continue for the foreseeable future and until his normal retirement age. On this basis I recommended discharge on the grounds of personality disorder ....". (7/10 of process)

In July 2003 he issued a certificate (7/1 of process) in terms of Regulation H1 of the 1987 Regulations certifying:-

"I find him (the petitioner) disabled by a medical condition from performing the duties of a police officer.

The disablement for the normal activities of a police officer by reason of personality disorder is likely to be permanent. .....".

[11 ] The report of Dr Watt having been considered by the second respondents, the petitioner was compulsorily retired on medical grounds. Thereafter the petitioner appealed in terms of Regulation H2(2) of the 1987 Regulations to a medical referee appointed by the Scottish Public Pensions Agency, acting on behalf of the Secretary of State. In the petitioner's case, the medical referee was Dr Douglas Patience, who is called as the first respondent but has not lodged answers. A letter from the first respondent's solicitors (6/10 of process) was lodged in which it was stated:-

"We consider that Dr Patience was placed, as is often the case for medical referees under these regulations, in a most difficult position. Dr Patience is of course not legally qualified. The Regulations required him to act in a quasi judicial capacity and to construe complex regulations that have been the subject of repeated litigation in recent years, and to grasp legal distinctions of some nicety.... He then required to apply the appropriate tests as he understood them to convoluted factual allegations....".

[12 ] Schedule H of the 1987 Regulations makes provision for the procedure to be followed in an appeal to a medical referee. Paragraph 4 makes provision for the appellant or the Police Authority to submit to the medical referee a statement relating to the subject matter of the appeal. In the present case both the petitioner and the second respondents submitted a number of documents which included medical reports. The materials submitted on behalf of the petitioner were a report from Dr Stewart (6/4 and 7/3 of process) and submissions (7/2 of process). In his report, Dr Stewart concluded that the petitioner did not fulfil criteria for paranoid personality disorder. He was of the opinion that the petitioner in 2001 was depressed but at the time of the report scored in the recovery range. The materials submitted on behalf of the second respondents were substantial and summarised at page 2 of the affidavit of Mr Blair (7/16 of process). This included a report from Dr Worrall dated 23 January 2003 (6/3 of process). He concluded that the petitioner was suffering from a paranoid personality disorder. Thereafter according to said affidavit, further documentation was produced including a copy of the decision in R v Sussex Police Authority Court of Appeal 4 April 2000 and a copy of Note of Guidance on permanent disablement issued by the Scottish Public Pensions Agency. It should be noted that the submission by the second respondents (7/4 of process) is a document of some length which deals with a range of factual matters about the history of interaction between the petitioner and the second respondents. Much of this appears to be contentious and not accepted by the petitioner. According to the affidavit of Mr Watson (6/6 of process) at the end of the proceedings, the first respondents, requested sight of the personnel records, the occupational health records and GP records of the petitioner. The former were sent to the first respondent under cover of letter 8 November 2004 and the personnel file which was said be voluminous was sent to him by courier on 16 November 2004. Although there was dispute about what occurred at the proceedings on 20 October 2004, there was no dispute about the documents made available to the first respondent.

[13 ] I comment at this stage that the medical referee had before him a great deal of information, much of which I understand to be the subject of dispute particularly in relation to the personnel history. He also had medical reports which differed. To some extent the medical opinion, for example Dr Worrall's opinion, appears to be predicated on a view of contentious personnel matters. For example he concludes that "On balance in my view he is ill. That judgment is based on both his objective appearance with me and the way in which he described his pursuit of his own personal vendetta against Strathclyde Police, some of the overvalued ideas he held within that topic and the fact that his single minded pursuit of this has been to his considerable social and personal disadvantage over the past few years. The formal diagnosis would be of a paranoid personality disorder. (He would many years ago have been regarded as "paranoid litigant"), as a result of that condition I do not think he is medically fit to continue serving a police officer....". (7/5 of process).

[14 ] With that documentary history and following events at the hearing on 26 October 2004. The first respondent as the medical referee gave written notice to the Police Authority and the appellant of his decision (6/1 of Process). This is brief and I quote the main text.

"Further to the Medical Appeal Hearing regarding (the petitioner) and held at Shawpark Resource Centre on 26 October 2004 I have now been able to consider the information received at the meeting and supplied by the police authority and the appellant.

Personality Disorder is characterised by persistent patterns of behaviour, lifestyle and mode of relating to others which are typically inflexible and represent an extreme or significant deviation from the average individual. It is associated with significant problems in social functioning and performance, and is usually first apparent in late childhood. Mr Rooney is a competive tenacious individual who has a strong sense of personal rights and attributes events in self referential manner. His history of serious gambling resulting in bankruptcy indicates serious psychopathology suggesting an inability to learn from experience. He demonstrates some insight to his character, reporting himself as the 'most stubborn bloody minded person I have ever met' indicating that he is aware that he is at the extreme for this particular character trait.

There is sufficient information to conclude that Mr Rooney suffers from a Personality Disorder which I do not consider to be treatable.

I consider that he is, as a result of this condition, permanently disabled from performing the ordinary duties of a member of the police force."

Submissions on behalf of the parties

[15 ] I deal firstly with the petitioner's submissions in relation to matters which senior counsel for the petitioner submitted could be determined on the basis of the information before me. Senior counsel for the petitioner made submissions in relation to paragraph 5 of the petition which criticised the first respondent for failing to come to a clear diagnosis. He submitted that the conclusion, "a personality disorder", is vague and does not indicate what type of personality disorder the petitioner suffers from. He invited me to consider DSM4 to conclude that a properly reasoned analysis or diagnosis would identify which type of personality disorder is being diagnosed and why. Senior counsel for the petitioner was also critical of the first respondent's failure to explain his approach.

[16 ] Under reference to paragraph 6 of the petition, detailed criticism was made of the reasoning in the written notice. It was submitted that two of the reasons given are manifestly ill-founded. The reference to the personality disorder becoming "usually first apparent in late childhood" was said to be without factual foundation in the pursuer's case. There was also criticism of the reference to the petitioner's history of serious gambling suggesting "an inability to learn from experience". Senior counsel submitted that it was undisputed in this case that the petitioner stopped gambling completely in about 1993 and has been a member of Gamblers Anonymous since then. I was also invited to consider a report from Dr Reith dated 2 May 2005 (6/9 of process) which criticises the extremely broad definition of personality disorder used by the first respondent. It "is so wide as to include potentially anyone whose lifestyle deviates from a culturally specific norm". There is also criticism of the first respondent's views about the prognosis of problem/pathological gambling.

[17 ] Senior counsel for the petitioner made his submissions on the basis that the first respondent had given reasons. His submission was to the effect that where reasons are given voluntarily, even if there is no duty to provide them, the reasons should be reviewed in accordance with the same standards as apply in cases where reasons must be given. This submission was made under reference to de Smith Woolfe & Jowell, Judicial Review of Administrative Action, 5^th Ed. paragraph 9 - 053 and the authorities cited therein, 9 - 049, 9 - 051, 9 - 052 and Clyde & Edwards, Judicial Review, paragraphs 1854, 1866, 1724. Senior counsel for the petitioner maintained that his attack on the written notice of the decision of the first respondent was not an effort to persuade the court that the first respondent had reached the wrong decision on the merits. It was an attack on rationality. Senior counsel accepted the approach adopted in West v Secretary of State for Scotland 1992 S.C.385 particularly the first two points emphasised at p.413. He submitted that the deficiencies in the reasons which were given disclose that the decision maker had not addressed the statutory questions properly because the decision was so poorly reasoned. To approach this from a different direction, he submitted that the first respondent made two fundamental errors. Firstly the first respondent appeared to find some significance in relation to the disorder manifesting itself in late childhood albeit what relevance this has to the petitioner is never explained. No factual basis is set out. Secondly, the first respondent referred to the gambling addiction of the petitioner without any reference to the undisputed fact that the petitioner had ceased gambling in about 1993 and was active in Gamblers Anonymous and that he had carried out the duties of a police officer for years both before and after his gambling problems. In particular he worked from 1999 prior to his sick leave in 2002.

[18 ] Senior counsel for the second respondents submitted that the petition should be dismissed under reference to West v Secretary of State for Scotland 1992 SC 385, page 412 and CCSU v Minister for Civil Service 1985 AC 374 at page 410. He submitted that the purpose of judicial review was to ensure that the decision maker does not exceed jurisdiction. Judicial Review is not to provide an appeal. His contention was that if one properly analysed the petition and the submissions on behalf of petitioner, the petitioner had not made out a case for judicial review.

[19] Senior counsel for the second respondents emphasised the importance of considering the criticisms, made on behalf of the petitioner, in the context of the structure of the statutory scheme as properly understood. I was addressed by senior counsel for the second respondents about the statutory structure and the importance of understanding the role of the medical referee within that statutory structure under reference to Strathclyde Joint Police Board v McKinley 2005 S.L.T. 764. He submitted that the medical referee is an independent medical specialist carrying out an investigation. He is not a judge in an adversarial situation obliged to decide between competing submissions.

[20 ] Senior counsel for the second respondents also submitted it was important to understand the material which had been made available to the first respondent and he therefore spent some time dealing with the productions to which I have referred. In relation to the written notice of the first respondent (6/1 of process), he submitted that written notice stood alone and should be interpreted on that basis. He was not asking the Court to read into the written notice any information from the affidavits about what the first respondent might or might not have done by way of examination and diagnosis of the petitioner. The second respondents' position was that a proper understanding of the statutory scheme made it plain that no reasons were required and that the role of the medical referee must be understood in the context of the statutory scheme. He submitted that in this case the medical referee was essentially deciding a medical question against a background of medical opinions which were not, as the petitioner contended, diametrically opposed. In the present case, he submitted, the first respondent was entitled to form his own opinion. The first respondent did not require to give any reasons and he did not have to weigh or balance or give reasons for accepting or rejecting other medical opinion. Senior counsel for the second respondents submitted that the weight of all the medical opinion was substantially to the effect that the petitioner did have a personality disorder. It was plain that Dr Stewart at best had reached a provisional diagnosis only. Basically the first respondent as a psychiatrist was entitled to reach the conclusion he did on the basis of his interview or examination and diagnosis. That is reflected and notified in 6/1 of process.

[21 ] In the course of his submission, senior counsel for the second respondents did emphasise, on a number of occasions, the absence of any requirement in the statutory scheme for the medical referee to provide reasons. He submitted that this was a case where no reasons were given. When asked to consider Answer 6 which concludes "The reasons which the first respondent did give adequately explained the basis of his expert medical opinion that the petitioner suffers from a personality disorder", he said that he did not agree with that formulation in the Answers to the Petition. He sought leave to delete that sentence. In essence the primary submission of senior counsel for the second respondents was that, properly analysed, this is a case in which no reasons were given. His secondary submission was that if the text of 6/1 of process was interpreted as reasons, the reasons were not susceptible to successful judicial review as they adequately met the legal tests. He submitted that in 6/1 of process the first respondent merely described the condition of personality disorder without expressing any view that development in early adulthood was relevant or appropriate to the petitioner. The reference to gambling was entirely a matter for the first respondent to give weight to in the context of his diagnosis. He submitted that in providing a medical diagnosis, psychiatrists did not normally give reasons.

[22 ] In response to the amendment to Answer 6 which I permitted, counsel for the petitioner submitted that deleting the last sentence from Answer 6 did not cure the problem for the second respondents. On any proper interpretation of 6/1 of process, the comments of the first respondent can only be interpreted as some form of reasoning process. This is reflected in Answer 6 even after the amendment. In any event it is 6/1 of process which must be considered. He submitted that the case should be approached on the basis that this is not a case where no reasons were given. The court is therefore obliged to have regard to the reasons (such as they are) which were given.

[23 ] No submissions were made as to whether the common law might imply a need for reasons in the context of the statutory scheme in this case. I make no comment therefore about that.

Discussion

[24 ] Both parties agreed that the role of the Court in the present action was limited and that this was not an appeal. I consider that in certain respects the submissions made by senior counsel for the petitioner went beyond the proper scope of judicial review and invited a re-assessment of the merits. I am not prepared to take up his invitation, which I summarise in paragraph 15, and embark upon a consideration of DSM4 or new material in 6/8 and 6/9 of process. To that extent, I consider there was some force in the criticisms made by senior counsel for the second respondents.

[25 ] The main thrust of the submission made by senior counsel for the petitioner concentrated on the interpretation and reasoning in 6/1 of process. In this respect I consider that his submission that the decision is manifestly irrational which I summarised in paragraph 17 falls plainly within the realm of Judicial Review. There is of course a high test to be met.

[26 ] I have considered in some detail, as requested by senior counsel for the second respondents, the statutory structure in which the medical referee made his decision. The analysis by Lord Reed in Strathclyde Joint Police Board v McKinlay of the proper approach to the construction of the Regulations is an analysis which I find very persuasive insofar as it relates to the general statutory structure. Lord Reed was dealing with a case in which an issue arose as to whether the disability suffered by the police officer was the result of an injury received in the execution of duty. The report made by the medical referee, a consultant psychiatrist was long and detailed. The points of criticism are discussed by Lord Reed in paragraphs 34 to 37. Lord Reed was not dealing with a case where esto the report disclosed any reasoning process it was brief in the extreme. The report in the present case does not provide a basis for the type of assessment undertaken by Lord Reed. Thus while I find Lord Reed's analysis helpful, it does not in my opinion assist with the issues which I consider critical to a determination of the present case.

[27 ] I accept that the statutory scheme does not provide that reasons should be given but neither does it provide that reasons should not be given if the decision maker wishes to do so. I consider firstly whether, on a proper interpretation of 6/1 of process, the first respondent as decision maker is expressing reasons. I have no difficulty in concluding that this is the proper interpretation of 6/1 of process. I reject the submissions made on behalf the second respondents that this is a case in which no reasons were given. There may be cases in which the decision maker is expressing nothing more than a reference to the statutory test or explaining some administrative procedure and such an explanation may not be interpreted as a reason for the decision. But in the present case I can think of no explanation for the text in 6/1 of process except that the first respondent is attempting to set out the reasons which lead him to his conclusion that "there is sufficient information to conclude that Mr Rooney suffers from a personality disorder which I do not consider to be treatable. I consider that he is, as a result of his condition, permanently disabled from performing the ordinary duties of a member of the police force". This is in line with the original position of the second respondents reflected in Answer 6. Senior counsel for the second respondents could give no satisfactory explanation for the text of 6/1 of process and seemed to suggest that it was unfortunately expressed and that the first respondents would have been better advised to say nothing.

[28 ] If I am correct in that interpretation, I consider that I am entitled to consider and review the reasons given according to the same standards as if the statutory regulations stated that reasons must be given. I consider that the correct approach is that submitted by senior counsel for the petitioner which I summarise in paragraph 17. I do not consider that the task of the first respondent under and in terms of the Regulations was merely to provide a diagnosis as a psychiatrist. He required to consider the case and apply his mind to the questions which I set out in paragraph 9. When I consider the reasoning in 6/1 of process, I do not find it intelligible in the circumstances of the case and I am of the view that the test of "Wednesbury unreasonableness" is met. I consider that there is merit in the criticisms made by senior counsel for the petitioner which I summarise in paragraph 17. I am unable to determine any reasoning which makes sense in the context of a case where it appears that the petitioner, whatever his personality, has in fact performed the duties of a police officer from 1979 to 1993 and from 1999 to 2002. The first respondent appears to proceed on the basis that the personality disorder is not a problem which occurred at or around the time when the petitioner ceased duties as a police officer. He appears to consider that the problem of personality disorder is longstanding and predated and continued during periods when it is not disputed the petitioner was working as a police officer. The first respondent makes no conclusions of fact to the contrary. He gives no further explanation of his reasoning process. It is also not disputed that the petitioner's history of serious gambling ceased in about 1993 and that since that date he has continued to be a non-gambler and member of Gamblers Anonymous. That undisputed history does not support the conclusion that he has an inability to learn from experience. One must question whether the first respondent was aware that the petitioner had ceased gambling and that he had resumed work for a number of years following his cessation of gambling. I consider that, standing the reasons given, the failure to deal with the petitioner's history of cessation of gambling and the performance by the petitioner of the duties of a police officer for some years thereafter is unintelligible. The reference to the problem in social functioning and performance usually first becoming apparent in late childhood is also unintelligible in this case. It is unclear whether the decision maker is making a finding that the petitioner falls within the typical pattern or is atypical. If the former, the first respondent does not appear to take into account that, whatever his personality, the petitioner performed the duties of a police officer from 1979 to 1993 and for a period thereafter.

Further Procedure

[29 ] In paragraphs 3, 4 and 8 of the petition, criticism is made of the first respondent because it is alleged he failed to carry out a medical examination of the petitioner and accordingly was not in a position to form his own opinion on the disputed medical evidence. This is an issue dealt with in the affidavits authorised in terms of the interlocutor of 15 March 2006. The position of senior counsel for the petitioner was that these issues could not be disposed of without oral evidence in view of the inconsistencies in the affidavits. Senior counsel for the second respondents accepted that there were inconsistencies but submitted that despite the inconsistencies, it was an obvious conclusion that the first respondent had carried out a medical examination which entitled him to reach the conclusion he reached.

[31 ] My understanding of the position of senior counsel for the petitioners is that in the event of my concluding that an order for reduction of the decision of the first respondent dated 22 November 2004 is appropriate, he does not seek a determination in relation to the outstanding matters in paragraphs 3, 4 and 8 of the petition. I also understand it to be a matter of agreement that senior counsel for both parties are agreed that in the event of an order for reduction being pronounced, the matter should be considered not by the first respondent but by a new panel which would be appropriate under the Regulations now current. I have arranged for the matter to come out By Order to give parties the opportunity to consider my opinion and confirm their positions before any interlocutor is pronounced.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Rooney, Re Judicial Review [2006] ScotCS CSOH_199 (21 December 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_199.html Cite as: [2006] ScotCS CSOH_199, [2006] CSOH 199

Scottish Court of Session Decisions