City of London Police Authority, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 314 (Admin)

Case No CO/5020/2002[2003] EWHC 314 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 14 February 2003
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OFClaimantTHE CITY OF LONDON POLICE AUTHORITYClaimantTHE COMMISSIONER OF POLICE FOR THE CITY OF LONDONClaimant-v-
Between
THE MEDICAL REFEREE UNDER THE POLICE PENSIONS REGULATIONS 1987Defendant(DR P L BIDSTRUP)DefendantMRS GURBAKSHO GALVINInterested PartyTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
PETER OLDHAM (instructed by Corporation of London, Guildhall, London, EC2P 2EJ) appeared for CLAIMANT for THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTEDFriday, 14 February 2003
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is an application for judicial review of decisions made by a medical referee, Dr Bidstrup, under the Police Pensions Regulations 1987.[2]The factual background, very briefly, is as follows. The first interested party, Mrs Galvin, was until 2001 a police constable in the City of London force. She was primarily engaged in fraud investigation, but also undertook some financial undercover work. She hoped to move full-time to undercover work, but something seems to have gone wrong after she went on maternity leave from November 1998 to April 1999. In due course, she made complaints of racial and sexual discrimination, which the force deny. She then went off work, saying that she was sick with stress.[3]The force agreed to refer her case to a qualified medical practitioner under Regulation H1(2) of the Police Pensions Regulations 1987 (the Regulations). Under the Regulations, four questions were posed for the medical practitioner: whether Mrs Galvin was disabled; whether the disability was permanent; whether the disability was the result of an injury received in the execution of her duty; and, lastly, the degree of her disablement. The medical practitioner was Dr Fletcher of the City of London Police's Occupation Health and Safety Unit. On 30 May 2001 she gave a certificate to the effect that Mrs Galvin was not disabled from performing the ordinary duties of a member of the police force.[4]Mrs Galvin was not satisfied with that and appealed, as she was entitled to do, to a medical referee under Regulation H2. It is important to understand the role of the medical referee under the Regulations. Regulation H2(3) is as follows:
"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 Regulation H(3), be final."
The questions referred to the selected medical practitioner are the four questions to which I have already referred.[5]The medical referee, Dr Bidstrup, held a hearing on 13 March 2002 and she produced a report which set out the medical evidence in front of her. Notwithstanding the requirement in regulation H2(3), she concluded:
" ... in order to reach a firm conclusion on prognosis, it would be appropriate and indeed essential, for Mrs Galvin to be referred for intensive psychotherapy and cognitive therapy probably over a period of several months after which the application for Disablement Pension could be reviewed."
The certificate which she was invited to sign enabled her to certify that:
"1 The appellant is/is not disabled from performing the ordinary duties of a member of the police force. "2 The disablement is/is not likely be permanent. "3 The appellant is permanently disabled in respect of the following conditions. "4 The condition(s) at 3 above is/is not the result of an injury received in the execution of duty."
Dr Bidstrup answered none of those questions and gave no certificate about any of those issues. Instead, having crossed out question 4, she said:
"If, as Mrs Galvin told me, she has had no psychotherapy or cognitive therapy for her anxiety and depression and is on no treatment now -- anti-depressants having been discontinued during the pregnancy -- it would be appropriate for her to be referred for intensive psycho and cognitive therapy probably over a period of several months, after which the application for Disablement Pension could be reviewed. Should she be unwilling to cooperate fully with this proposal the Decision of 30 May 2001 should be confirmed."
[6]Not surprisingly, correspondence ensued in which it was pointed out to Dr Bidstrup that she had failed to provide a certificate which accorded with Regulation H2(3) of the Regulations. After a certain amount of toing and froing, Dr Bidstrup wrote a letter on 5 August 2002 to Mr Moir of the Police Pensions and Recruitment Policy section saying:
"Having reviewed the documents made available prior to the hearing of the appeal on 13 March, 2002, the evidence taken at the hearing (report dated 20 March, 2002) and my reply to your letter of 30 April, 2002, I enclose an amended certificate. "
On the evidence available to me on 13 March, 2002, Mrs Galvin was disabled from performing the ordinary duties of a member of the Police Force and unlikely to be able to resume these duties." A certificate was enclosed which said:
"1 The appellant is disabled from performing the ordinary duties of a member of the police force. "2 The disablement is likely to be permanent. "3 The appellant is permanently disabled in respect of the following condition(s): anxiety and depression. "4 The condition(s) at 3 above is the result of an injury received in the execution of duty."
[7]That decision was challenged, essentially upon the basis that it was wholly inconsistent with Dr Bidstrup's earlier view (which was, in essence, that she was unable to reach a conclusion without knowing the results of further therapy), and there had been no further information provided to her between the hearing on 27 March and her letter of 5 August 2002. Permission was granted on the papers by Maurice Kay J, who said that the case should be listed for mention or directions as soon as possible, adding:
" ... it seems unlikely that there will ever be a substantive hearing in this case."
His forecast proved to be correct because, in due course, Mrs Galvin made it clear, in a letter of 25 November 2002, that she no longer wished to pursue the matter. Dr Bidstrup, in a letter of 4 December 2002, said that she did not propose to contest the claim of judicial review. When she was asked to clarify her position, she said in a letter of 23 December:
"I confirm that I stand by my decision of 13 March, 2002 (report dated 27 March) and confirm that I will not be contesting this decision."
It is plain that the decision of 13 March did not amount to a certificate for the purposes of the Regulations.[8]Although the case has been listed for directions, Mr Oldham, on behalf of the claimant, invites me to allow the application for judicial review and to quash the March and August decisions of Dr Bidstrup. In the circumstances, I am quite satisfied that that is the proper course to adopt. There is simply no point in prolonging this case, in the light of the attitudes of the defendant and the interested parties. I should add that the Secretary of State for the Home Department is also an interested party, in addition to Mrs Galvin, and in a letter of 7 February 2003 from the Treasury Solicitor the Home Office has made it clear that it wishes to maintain a neutral position and would not wish to resist or concede the case. So, effectively, there is no opposition to the granting of judicial review.[9]I should just make clear the basis on which I am satisfied that judicial review ought to be granted. The starting point is the March 2002 certificate, or rather the March 2002 non-certificate. It is plain from the face of that document that it does not begin to comply with the requirements of the Regulations. Moving on from that, the August certificate does comply, on its face, with the Regulations, but Mr Oldham is entirely correct to submit that it is wholly inconsistent with the March 2002 decision, which was, in essence, that Dr Bidstrup was unable to reach any firm conclusion about the four matters referred to in the certificate. No further information was made available to Dr Bidstrup between March 2002 and August 2002, so there was no rational basis on which she could have so certified.[10]There is a further point and it is this: Dr Bidstrup set out the medical evidence which was before her at the hearing on 27 March. There was evidence from Mrs Galvin's GP, Dr Dhalla, from a Dr Cooling and a Dr Campbell, in addition to the evidence from Dr Fletcher. None of those doctors was suggesting that Mrs Galvin was permanently disabled as a result of an injury received in the execution of her duty. Dr Bidstrup as a qualified medical practitioner was fully entitled to disagree, if she wished to do so, from the views of those other doctors. However, if she was going to disagree with them, then at least she had to give some, albeit brief, reasons explaining why she thought it right to do so. There is no such reasoning.[11]For all of these reasons, I am quite satisfied that there has been a total failure to comply with the requirements of regulation H2, and the two decisions of Dr Bidstrup in March and August 2002 must be quashed.[12]MR OLDHAM: My Lord, I am very grateful. My Lord, I do make an application for costs.

MR JUSTICE SULLIVAN: Against Dr Bidstrup?

[14]MR OLDHAM: My Lord, indeed.[15]MR JUSTICE SULLIVAN: I mean, she says right at the start, does she not, after the acknowledgment of service, "I am not going to contest"?[16]MR OLDHAM: She does, my Lord.[17]MR JUSTICE SULLIVAN: Why do you say she should have to pay the costs after she makes it clear that she has put her hands up?[18]MR OLDHAM: My Lord, if it had been the case that the parties against whom we have to bring this claim, who are involved in the claim, had come together and said that they consented to relief at that stage, then one could quite see that there would be a strong argument why they should not have to pay any costs. But that is not, in fact, what they did. It is not, particularly, what Dr Bidstrup did. She did say that she was standing by the decision of 13 March and did, therefore, force us to take the matter further. I am also reminded, and I am grateful, of this letter, which is not before your Lordship. I am so sorry, it is; it is page 17.

MR JUSTICE SULLIVAN: Is it in this bundle of correspondence?

[20]MR OLDHAM: Yes, it is pages 17 and 18, which your Lordship has seen and which are self-explanatory. So we did try and get the matter disposed of in as cheap a way as possible, through seeking a consent order.[21]MR JUSTICE SULLIVAN: The trouble is, I think, that Dr Bidstrup is not a lawyer. The other factor is, I think, that she is acting -- we used to be able to say quasi-judicial -- she is acting in a quasi-judicial capacity, is she not? She is a tribunal.[22]MR OLDHAM: I accept that.

MR JUSTICE SULLIVAN: Anyway, you have made your application.

[24]MR OLDHAM: Indeed, I have.[25]MR JUSTICE SULLIVAN: I think, in the circumstances, it would not be right to award costs to the claimant. I do not say that in any critical sense, so far as the claimants are concerned. I just think that Dr Bidstrup, who was acting in a quasi-judiciary role, did her best as a non-lawyer to make it clear that she was putting her hands up at an early opportunity.[26]MR OLDHAM: So be it, my Lord. I am grateful.

MR JUSTICE SULLIVAN: Thank you very much.