Bostock, R (on the application of) v Entwhistle & Anor [2004] EWHC 1166 (Admin)

Case No CO/5869/03

[2004] EWHC 1166 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 30 April 2004

Strand

London WC2

B E F O R E:

MR JUSTICE GOLDRING

Between

THE QUEEN ON THE APPLICATION OF TERENCE BOSTOCKClaimant

-v-

Between

DR IAN REID ENTWHISTLEDefendant

WEST YORKSHIRE POLICE AUTHORITYInterested Party

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MS HENRIETTA HILL (instructed by Russell Jones & Walker) appeared for CLAIMANT

for THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED

MR JAMES FINDLAY (instructed by Sharpe Pritchard) appeared for INTERESTED PARTY

J U D G M E N T

MR JUSTICE GOLDRING: Introduction

[2]The claimant is a former police officer. He joined the West Yorkshire Police in November 1971. Ignoring a gap of about 1.25 years in 1975 and 1976, he was with the force until retirement on medical grounds on 6 July 2000. He was awarded an ill health pension. He was not awarded an "injury on duty" award under the Police Pensions Regulations 1987 ("the Regulations"). He appealed to the defendant as medical referee. He seeks judicial review of the defendant's decision of 6 August 2003 that he was not permanently disabled by anxiety from performing the ordinary duties of a police officer.

[3]The defendant has not appeared before me today either in person or represented. The interested party has and has supported the defendant's decision. The background facts

[4]In the papers there is a great deal of documentation dealing with the claimant's history, both medical and as a police officer. The statement of facts in the application goes through them in great detail. I have read it with care. However, I shall not go through all the detail other than is necessary for the purposes of this application.

[5]It is the claimant's case that during the course of his police service he was exposed to a series of traumatic and life threatening events. They are said to have begun in late 1977 or 1978 when a shotgun was pointed at him. They include such things as being exposed to riots, being part of a team which dug up the body of a dead girl, being involved in the miners' strike and, more recently, shortly before January 1998, when a witness in a case, being threatened at his home by some professional criminals.

[6]It is agreed that the claimant suffers from a chronic anxiety state. It is the claimant's case that is as a result of these events. The anxiety state permanently prevents him from working as a police officer.

[7]As well as suffering from a chronic anxiety state the claimant suffers also from hypertension. Although the claimant's case was that that too was caused by these events, for present purposes that can be ignored, for there is no challenge to the defendant's decision that that was not so.

[8]There are a number of medical reports dealing with the worsening of the claimant's health. The tenor of the reports is that the anxiety state and the claimant's work were linked. That is referred to in detail in the grounds.

[9]By 1 February 1999 the claimant was signed off work. He felt he could not cope. He continued to be signed off work. The problem was said to be both blood pressure and stress and to be work-related. He was off work until 13 March 2000. He was only able to remain back at work for a day.

[10]In November 1999, Dr Shinn, the interested party's medical officer, suggested that with suitable support mechanisms the claimant should be able to return to work: see page 278 of the bundle.

[11]On 15 February 1999, the claimant's General Practitioner wrote to Dr Shinn in the following terms:

" ... His anxiety seems to be exclusively related to the work environment. This is reflected in two blood pressure monitoring sessions that we have now performed which show quite clearly an elevation in blood pressure in relation to work ..."

[12]On 7 April 2000, the claimant was seen by a consultant cardiologist, Dr Silverton, who had been instructed by the interested party. Among other things he referred to post-traumatic stress disorder. He confirmed the claimant's blood pressure was unacceptably high. He said this:

"Having spent some considerable time speaking to Mr Bostock and examining him I formed the impression that my own personal confidence in the West Yorkshire Metropolitan Police would be severely dented if patients with his obvious psychological problems were obliged to resume active duty. From the point of view of a practising physician I believe that his problems of hypertension will not reach a satisfactory solution if he continues to work and that there is now an intimate relationship between what I presume is battle fatigue producing an agitated depression and his hypertension. The two problems require energetic treatment in their own right and the management of one without the other will not solve his problems. For all the reasons outlined above I do not believe that Mr Bostock could complete his service with the West Yorkshire Police and remain healthy. There appears sufficient evidence that continued exposure to this sort of work would be injurious to his health and it is, as I have stated above, a source of astonishment to me that the force could consider having a patient in Mr Bostock's delicate state involved in front line duties."

[13]Dr Shinn subsequently suggested that Dr Silverton was not qualified to make those observations. On 13 April 2000, Dr Shinn signed what is called a Police Pensions Regulations-Certificate of Permanent Disablement. It refers to the report from Dr Silverton. Dr Shinn states that in his opinion the claimant is suffering from hypertension and anxiety. He states that the hypertension was not sustained on duty, the anxiety was. Dr Shinn states the hypertension "Is ... likely to be permanent, not the anxiety". In paragraph 2, Dr Shinn states:

"This officer is permanently disabled from performing the ordinary duties of a member of the police force for the purpose of Pensions Regulations."

[14]In short, therefore, Dr Shinn's view was this: the hypertension was likely to be permanent; it was not an injury on duty. The anxiety was an injury on duty; its condition was unlikely to be permanent. As will become apparent, the opinion that the anxiety condition was not likely to be permanent was fatal to the claimant in seeking to obtain an "injury on duty award" under the Regulations. So, similarly, was the opinion that the hypertension was not an injury on duty. Because of that, the claimant decided to appeal Dr Shinn's certificate to the medical referee.

[15]The claimant instructed a psychiatrist, Dr Nehaul. He expressed the view that the claimant suffered "emotional trauma" while serving as a police officer. He said the claimant was disabled as a result, and put the degree of disablement in the order of 25 per cent. Dr Shinn did not change the opinion expressed in his certificate. The appeal

[16]Each side prepared and submitted documents to the defendant as medical referee. In their submissions, the interested party posed the questions to be considered by the defendant in this way:

"The issues, which you are asked to determine, are: • Is the person concerned permanently disabled from performing the ordinary duties of a police officer by 'anxiety'? • Is the disablement occasioned by 'hypertension', the result of an injury received in the execution of duty?"

[17]In their submissions, the claimant's advisers, among other things, said this:

"In considering the questions raised by the Home Office, I would ask you to consider the following points ... (b) Regulation A12 provides the definition of 'disablement' and refers to an officer's ability to perform ordinary duties of a police officer. The Court of Appeal confirmed in Sussex Police Authority v Stewart, that the 'ordinary duties' means all of the duties which a police officer could ordinarily be expected to perform, including patrol and confrontational duty and not simply administrative tasks. The definition should not therefore be restricted to purely administrative or office based tasks [they suggest] ... (d) It follows, that it is accepted that Mr Bostock is 'disabled' from performing the ordinary duties of a police officer as a consequence of the 'anxiety'. The real point at issue in respect of that condition is therefore whether the acknowledged disablement is 'likely to be permanent'. (e) The Home Office guidance to medical referees ... currently advises that, whilst each case should be judged on its merits, disablement which is likely to last for four years or more should always be regarded as likely to be permanent whilst anything that is likely to resolve within 12 months should not be so regarded. (f) In this case, we would ask you to take the view that Mr Bostock's 'anxiety' problem was, at the time of his retirement, already of a longstanding nature. Thereafter, even though his condition might be expected to improve whilst he is away from the police environment, it would undoubtedly recur and continue indefinitely were he to remain in the police. It follows, we would argue, that it should be considered 'likely to be permanent' for the purpose of the Regulations. (g) We would emphasise that the question you have to determine is not whether Mr Bostock is suffering from a permanent medical condition, but whether his disablement from performing police duties is likely to be permanent."

[18]It is to be noted that implicit in the questions posed by the interested party is an acceptance that, as Dr Shinn stated, the anxiety state was an injury on duty. The only matter for consideration by the defendant was the nature of the disability: whether permanent or not. The defendant's decision

[19]I should set it out in detail. It is not an exaggeration, as Mr Findlay on behalf of the interested party conceded, to describe it as sparse in reasoning:

" ... The question giving rise to the appeal is: 1. Is the person concerned permanently disabled from performing the ordinary duties of a police officer by anxiety? and 2. Is the disablement, occasioned by 'hypertension', the result of an injury received in the execution of duty?"

[20]The defendant sets out the documents he received. He states this:

"At the hearing both sides were given an opportunity to present their case and to cross-examine each other. In forming my conclusion with respect to the first question I applied the test that permanency, although not defined in the regulations since the word arguably speaks for itself, meaning for the rest of one's life, I depended upon a more liberal interpretation, ie that the officer is likely to remain disabled for the established duties of a member of the force until at least the normal compulsory retirement age for his rank. Also for the purposes of permanent I depended on the assumption that the person receives normal appropriate medical treatment for his disablement. I have no doubt that Terence Bostock is suffering from a chronic anxiety state and it is clearly documented that between mid 1970's and early 1980's he was exposed to traumatic and potentially life threatening incidents during the course of his work. However, it was not until February 1991 that he complained of anxiety and even then he did not couple it to his work. Indeed, Consultant Psychiatrist, John J Nehaul, in a report dated 25 April 2002 states that: 'A report from Dr John O'Melia, Consultant Psychiatrist at Northowram Hospital, Halifax, dated 15 December 1999 referred to a letter from a Dr Segal, retired Consultant Psychiatrist, dated 2 September 1981. I understand Mr Bostock had been referred to Dr Segal with 'depression and cardiac ill-health phobias for some two years'. I understand Dr Segal felt Mr Bostock's problems were due to the death of his father from heart disease some 13 years earlier. I understand that he was followed up in Dr Segal's out-patients for some six months, when there was no mention of work related stress.' An incident in 1998, when he and his family where[sic] threatened did not result in the completion of an Injury on Duty form. In my opinion Terence Bostock has failed to establish a causative link with his work and the development of his chronic anxiety state. I understand the presence of which is not disputed. Chronic anxiety is usually a life long condition but can be influenced by treatment. For the 'Purposes of Permanent' it shall be assumed that the person receives the appropriate medical treatment for his or her disability. Terence Bostock is not in receipt of any treatment. Therefore 'Permanency' has not been established ... In my opinion I conclude that Terence Bostock has failed to establish a causal link to any injury on duty and his condition of 'anxiety' is not likely to be permanent. I therefore conclude that Terence Bostock's appeal should be dismissed and that the opinion of Dr Shinn, the West Yorkshire Police Force Medical Officer, be upheld."

[21]Additionally, the defendant produced a "Certificate of the Medical Referee". It states, "Following my consideration of this appeal ... I certify that: 1. The appellant is disabled from performing the ordinary duties of a member of the police force. 2. The disablement is not likely to be permanent."

[22]It is the finding that permanency has not been established regarding the anxiety state that the claimant seeks to quash.

[23]In the decision, the defendant of course dealt with a matter he was not specifically asked to in the questions posed to him at the outset: the cause of the anxiety state. His findings about it were different from those of Dr Shinn. He found there was not established a causative link between work and the development of the anxiety state. (Although there may be indications in some later notes from Dr Shinn that he may have been reconsidering causation, the questions posed to the defendant do not suggest that.)

[24]The finding as to the absence of link is not part of this challenge. However, if the decision is quashed, both that and the aspect that is challenged would be considered by a fresh medical referee. The Regulations

[25]By Regulation B(1) and B(2), a police officer is entitled to an injury pension if he "ceases or has ceased to be a member of a police force and is permanently [my emphasis] disabled as a result of an injury received in the execution of his duty". Regulation A11 defines what execution of duty means. A11(1) states:

"A reference to(sic) these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable ... 2. An injury shall be treated as received by a person in the execution of his duty as a constable if -- (a) the member concerned received the injury while on duty ..."

[26]Disablement is defined in Regulation A12(1). It 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. (2) ... disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male member of the force ... "

[27]The Police Pensions (Amendment) (No. 2) Regulations 2003 states, "After Regulation A12(1) (disablement) insert- '(1A) For the purposes of deciding if a person's disablement is likely to be permanent, that person shall be assumed to receive normal appropriate medical treatment for his disablement, and in this paragraph 'appropriate medical treatment' shall not include medical treatment that it is reasonable in the opinion of the Police Authority for that person to refuse'." The grounds for judicial review which are advanced

[28]There are three grounds advanced. It is agreed that it is appropriate to consider ground 2 first. Ms Hill, on behalf of the claimant, only faintly advances ground 3. Ground 2

[29]Ground 2 alleges that the defendant erred in his consideration of the permanency of the anxiety state. He asked himself whether it was a permanent state. He should have asked himself, in accordance with the terms of Article A12(1) and A12(2), whether the claimant was permanently disabled from performing the ordinary duties of a police officer as a result of his anxiety.

[30]That he should have asked himself that question is agreed. Whether or not he did is the issue.

[31]Ms Hill, on behalf of the claimant, makes the following submissions. They are conveniently set out in her skeleton argument:

"29. Although the defendant did replicate the question referred to him correctly ... his reasoning ... strongly suggests that in answering it, he did not have in mind that permanency was linked with disablement from performing police duties. 30. Nowhere in the defendant's decision does he address the fact that on all the medical evidence the claimant's disablement from police duties caused by anxiety was, as at the date of determination, permanent, despite the fact that his anxiety levels may have lessened when he was actually away from police work. 31. Rather, that he was focussing on the likely permanency of the illness and not the likely permanency of the disablement from police duties is apparent from (i) his initial consideration that permanency could be determined by whether the claimant was likely to suffer from the condition for the rest of his life ... (which plainly extends beyond this police service); (ii) the fact that he then purported to answer the question of permanence by reference to the date on which the anxiety first manifested itself ... and (iii) the fact that he went to look at the issue of treatment ... 32. The fact that he was not answering the correct question on the anxiety issue is further evidenced by his apparent consideration of whether anxiety was caused by an injury on duty ... 33. Accordingly it is submitted that the defendant erred in that he failed to answer the correct question, namely was the claimant permanently disabled by his anxiety state from performing his police duties ... Had he asked himself the correct question, in the light of the apparent unanimity among the experts (aside from Dr Shinn) ... the only answer could have been yes."

[32]Mr Findlay, on behalf of the interested party, makes two preliminary points. First, both the claimant and the interested party in their submissions to the defendant expounded the test correctly. Second, it is not being submitted that the defendant was not entitled to reach the decision on permanency he did on the basis of the evidence that was before him; in other words, that the decision itself does not, he submits, suggest an incorrect approach. He then goes on to make the following submissions which fundamentally seem to me to be right. First, the correct test was set out in the certificate. Second, it was set out in paragraph 1 of the report. Third, it was set out in page 2 of the report in the sentence beginning "informing my conclusion" and ending with the words "for his rank".

[33]At one stage Ms Hill suggested that the absence of the reference to four years was material. However, given the claimant's age at the time of this decision, that does not seem to me to be relevant. My view on ground 2

[34]Albeit there is some force in some of the observations Ms Hill made, I cannot, as I have indicated, accept them. The defendant was told the appropriate test. He set it out. He sufficiently repeated it, and he repeated it finally in his certificate. I am afraid, therefore, ground 2 fails. Ground 1

[35]It is agreed that this is a distinct ground, albeit of course there is a connection between grounds 2 and 1. Ground 1 alleges that the defendant wrongly concluded that, because the claimant was not receiving medical treatment for his anxiety state, the disablement could not be regarded as permanent. Again, there is no dispute about the effect of the Regulations. It is set out in paragraph 35 of Ms Hill's skeleton in these terms:

"The reference to medical treatment in Regulation A12(1A) is intended to address the situation in which a condition is permanently disabling only because the individual is not receiving medical treatment. If the view of the medical referee is that normal appropriate medical treatment would enable the officer to return to ordinary police duties, the condition is not to be regarded as permanent (even if the officer unreasonably declines such treatment and so as a result is never able to return to service)."

[36]During the course of argument I asked how treatment was dealt with during the course of the hearing. Ms Hill has been able to provide a little information; Mr Findlay has not. Although not material to my decision, Ms Hill tells me that treatment was dealt with by way of a round-up question to the claimant at the end of his evidence. He said he was not on treatment at the time of the hearing. The hearing, of course, was some substantial time after he had ceased service in the police force.

[37]Ms Hill's submissions are set out in her skeleton argument in the following terms:

"34. This ground derives from Regulation A12(1A) ... which provides that in order to determine the permanency issue, the officer is assumed to receive normal appropriate medical treatment for his disablement ... 35. But the converse is not true ... The defendant's decision is brief and unreasoned but to the extent that he appears to have directed himself that the disablement from the condition cannot be regarded as disabling unless the individual is receiving treatment for it, the same was an error of law. 36. Whether or not he made that correct assumption, the defendant failed to go on to consider whether treatment might have reduced or eliminated the claimant's disablement (so it would not rightly be classified as permanent); or whether treatment would have made no difference (in which case it would be permanent). 37. As to this issue, in view of the overwhelming evidence of the situational cause of the claimant's anxiety (his work), the only treatment which he was receiving and which he would need to continue to receive was keeping him away from police duties, which would by definition have answered the issue of permanence in the affirmative."

[38]However precisely one reads what is said about treatment, submits Ms Hill, at no time did the defendant grapple with this issue: the connection between work and the anxiety state, a state which the overwhelming majority of medical evidence suggested was connected with work. Neither, she submits, does the defendant consider any treatment options. Neither, she submits, does he apply any possible treatment to the facts of this case.

[39]Mr Findlay's response is a detailed analysis of the report. He submits that the reasoning is sparse but it is adequate. He sets it out in detail in his skeleton argument. It is paragraph 17, subparagraphs (i) to (vii):(i) ... The defendant stated [that] ' ... for the purposes of permanent [he] depended on the assumption that the person receives normal appropriate medical treatment ...'

(ii) The defendant's decision is contained in the passage [ending with the words] ' ... Therefore 'Permanency' has not been established.'

(iii) It is important to note that the word 'therefore' governs all which goes before in that paragraph, not just the preceding sentence ...

(iv) The passage ... demonstrates that there were five steps to the defendant's logic: (a) First, [he] accepts that the claimant is suffering from chronic anxiety but not the causal link with his work ... (b) Secondly, he states his opinion that 'chronic anxiety' can be influenced by treatment. I.e. upon any fair reading of the decision it is clear that the defendant is of the view that the claimant's condition should be susceptible to treatment and positively so ... (c) Thirdly, he notes that the claimant is not (and had not been) in receipt of any treatment ... This is relevant, because it might/would have shown that the claimant was an exception to the view ... that such conditions can be influenced by treatment. The lack of a causal link is also relevant here. (d) Fourthly, he notes that he should answer the question on the basis that the claimant was in receipt in such treatment. (e) Fifthly, his conclusion is clear and follows logically.

(v) Indeed, the wording of his conclusion reinforces the above approach ... on the evidence before him permanency 'has not been established' given his view that chronic anxiety is a condition that can be influenced by treatment.

(vi) Considered objectively, given the acceptance that the current condition existed, the only issue was whether it would be permanent. That required consideration as to whether it would improve. The defendant states that it is 'usually a life long condition' ... That leaves but one other possibility -- treatment. If the claimant had been in receipt of treatment ... and there were no signs of his condition being influenced then the defendant way well have come to a different conclusion.

(vii) There is no substance in the assertion that the defendant has suggested receipt of appropriate medical treatment is a pre-condition. It was relevant. Its relevance was that there was nothing to rebut the defendant's generally held view that the condition can be influenced by treatment."

[40]Mr Findlay in argument emphasises that it is not said by the claimant that the defendant was not entitled to conclude the absence of a link between the development of the anxiety state and work. He emphasises that this is not a reasons challenge or an irrationality challenge. What it comes to, he submits, is that the defendant preferred Dr Shinn's report to the claimant's. My view

[41]I accept that a medical referee's report should not be construed as though it is a court judgment. I accept that the defendant did correctly set out the definition of permanency in the body of his report. I accept too that this was not an easy case for the defendant. He was having to consider two different medical conditions which may not be unconnected. Dr Shinn, who was present at the hearing of the appeal, at least in the written documents, was saying different things in respect of each of those conditions. However, in the final analysis, it does seem to me that there is substance in Ms Hill's submissions. I say that not without a little hesitation.

[42]The defendant correctly states that he should assume appropriate treatment. He no doubt correctly states that an anxiety state is usually life long, but can be influenced by treatment. What he does not do is indicate how, on the facts of the claimant's case, the state might be so influenced. Neither, more particularly, does he appear to consider such treatment in the context of the claimant returning to work. The overwhelming majority of the evidence before him was that there was a link between the anxiety state and work. Dr Shinn, whose evidence the defendant stated he was upholding, at least in his certificate, had spoken of such a correction, albeit he had in November 1999 spoken of the possibility of the claimant being rehabilitated. The defendant himself in his report speaks in terms of an absence of link between such work and the development of the condition. That does not amount to the absence of such a link once the anxiety state had developed (although it is right to say he puts it slightly differently in the final sentence of the report). Although the use of the word "therefore" emphasised by Ms Hill in her skeleton argument, and certainly in her grounds, may be intended to refer to more than simply the preceding sentence, given the sparsity of the reasoning in the report, that is far from clear.

[43]In the circumstances, therefore, I have come to the conclusion that the defendant did err in failing properly to consider the issue of treatment in the context of Regulation A12(1), A12(1A) and A12(2). That ground of the application therefore succeeds.

[44]In those circumstances, it is not necessary to consider ground 3.

[45]Before leaving this case, may I say this. It is, of course, never a good thing in any sort of adjudication to be unnecessarily wordy. However, it is necessary to provide sufficient detail so that the reader can understand the reasoning in a decision such as this without having to attempt the close textual analysis that Mr Findlay was here driven to.

[46]In the result, therefore, I quash this determination and remit the appeal for further consideration by a fresh medical referee.

[47]MS HILL: My Lord, in those circumstances I have been provided with a statement of costs from my learned friend.

MR JUSTICE GOLDRING: I have seen it but I am not quite sure where it is at the moment.

[49]MS HILL: I can hand you my copy.

[50]MR FINDLAY: My Lord, I have no dispute as to the figure of costs but I do have a dispute as to the issue of costs.

MR JUSTICE GOLDRING: Tell me.

[52]MR FINDLAY: My Lord, your Lordship has indicated the case boiled down to two issues. Your Lordship has indicated that I was successful on one. But primarily in respect of the issue I was unsuccessful on, it was clearly, given the terms of your Lordship's judgment, primarily the absence of reasoning or the deficiency of reasoning upon which I lost, rather than the ground as advanced primarily in the claim form.

MR JUSTICE GOLDRING: I certainly sought to encompass it in the grounds advanced in the claim form.

[54]MR FINDLAY: My Lord, in argument this morning I certainly accepted that I was quite prepared to deal with that point, but I did wish to place a marker and that was the reason for doing so, that it was not a ground that we had come here prepared to meet or the decision we had taken to defend these matters. So, my Lord, in those circumstances I would either ask that the order be no order as to costs to reflect those matters or your Lordship considers some form of percentage reduction.

[55]MS HILL: My Lord, I hope it was clear from the way in which the case was put that, although it was not specifically a reasons challenge, it was largely based on the fact that --

MR JUSTICE GOLDRING: 75 per cent, Ms Hill.

[57]MS HILL: Thank you.

MR JUSTICE GOLDRING: May I thank both of you.

[59]MR FINDLAY: My Lord, may I take brief instructions on whether I need to -- I have no application.