Sidwell, R (On the Application Of) v Police Medical Board [2015] EWHC 122 (Admin)

[2015] EWHC 122 (Admin)Case No CO/14609/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 29 th January 2015
Before
MR JUSTICE MOSTYN
Between
The QueenClaimanton the application ofClaimantSidwellClaimantPolice Medical Appeal BoardDefendantThe Chief Constable of the Derbyshire ConstabularyInterested Party
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Martin Westgate QC (instructed by Pattinson & Brewer) for ClaimantJohn Beggs QC and Sarah Simcock (instructed by Force Solicitors) for Interested Party for The Defendant was not representedHearing Hearing date: 22 January 2015
JudgmentMr Justice Mostyn :
[1]On 4 July 2013 the Police Medical Appeal Board ("PMAB") decided that the claimant was not permanently disabled within the meaning of Regulation A12 of the Police Pensions Regulations 1987. Had they decided the issue in the claimant's favour, and the claimant was then retired, he would have been able to have claimed three extra earlier years of pension payments, so the decision had a real economic impact on him. The claimant wishes to challenge that decision. There is no statutory right of appeal against a decision of the PMAB. The only route of challenge is judicial review. The claimant mounted his claim on 3 October 2013 and was granted permission on 28 February 2014. I heard the application on 22 January 2015.[2]The decision is challenged on traditional grounds. First it is said that the PMAB erred in law; second, that is gave inadequate reasons; and third that its reasoning is absurd and/or perverse and/or irrational.[3]The PMAB is a specialist tribunal. Its members are all medically qualified. Here the Board in question had as its chairman a consultant occupational health physician and as its second member an occupational health physician. The board also had a "specialist member", that is to say a member who specialised in the field the subject matter of the appeal. In this case the specialist member was Dr Nehaul, a consultant psychiatrist.[4]The highly specialised role and function of the board is illustrated by the fact that the specialist member acts not only as a decision maker but as an expert witness as well. This seems to blur traditional lines of demarcation from a lawyer's perspective but no-one has suggested that this is improper. Thus in this case the specialist member performed a clinical examination on the claimant on the day of the hearing, 21 June 2013. His evidence deriving from that examination was part of the material on which the board, which included him, based its decision.[5]It is trite law that this court will pay considerable respect to the decision of an expert and informed tribunal, and will only interfere where the grounds of challenge are clearly made out: see Law Society v Salsbury [2008] EWCA Civ 1285 [2009] 1 WLR 1286 per Jackson LJ at para 30.[6]Inasmuch as the challenge is made to the alleged inadequacy of the reasons I remind myself of the words of Munby LJ (as he then was) in ReA and L (Children) [2011] EWCA Civ 1611 at paras 34 and 35:
'There are two principles in play here. The first is that explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, 1372. So far as concerns a judge's approach to a case and his reasoning his "reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account." An appellate court, Lord Hoffmann continued, "should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself." The other principle, relating to the adequacy of a judge's expressed reasons, is that explained by Lord Phillips of Matravers MR in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409, paras [17]-[21]. For present purposes it suffices to refer to how Thorpe LJ put it in Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, [2003] 2 FLR 1035, para [11]: "the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions?" Thorpe LJ had previously observed that one should not ignore the "seniority and experience" of the particular judge, the "huge virtue in brevity of judgment", and that the "more experienced the judge the more likely it is that he may display the virtue of brevity." I should add that there is no obligation for a judge to go on and give, as it were, reasons for his reasons.'
[7]Where the decision is written by members who are not legally qualified and who do not have the benefit of assistance from a legal adviser I should be especially careful not to subject their reasoning to intense narrow textual scrutiny. I should not expect their reasoning to resemble a judgment written by Lord Birkenhead.[8]Although the words "permanently disabled" are plain and simple English words which one might expect would not require an elaborate, or indeed any, definition, that is not the case here. While Regulation A12 does not define the concept of permanence, it subjects disablement to an elaborate and tortured definition. The definition, so far as is material to this case, is as follows:
"(2) … disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a member of the force, except that, in relation to a child or the widower of a member of a police force, it means inability, occasioned as aforesaid, to earn a living. … (5) In this regulation, “infirmity” means a disease, injury or medical condition, and includes a mental disorder, injury or condition."
[9]It is not clear to me why the draftsman has included a separate reference to disease or injury when these are plainly medical conditions or why he spells out a mental disorder, injury or condition when these are obviously medical conditions of the mind. It seems to me that the definition is replete with tautologies.[10]It has been decided that an inability to perform the ordinary duties of a member of the force means all of those duties (R v Sussex PA ex p Stewart [2000] EWCA Civ 101). Further, that the reference to "the force" is to the actual force in which the claimant serves (R (Ashton) v PMAB [2009] ICR 51).[11]It has been decided that the reference to a medical condition is to an actual medical condition and not to a putative one which the claimant is vulnerable to suffer from at some point in the future (R (Northumbria Police Authority) v Broome [2006] ICR 555). Further, and unsurprisingly, it has been held that a medical condition has to be one recognised by medicine (ibid).[12]To my mind the concept of permanence is best defined by saying that the decision maker must be satisfied that the inability will continue for the foreseeable future.[13]Accordingly it seems to me that for the purposes of Regulation A12 "permanent disablement" requires proof of three distinct matters namely: i) an inability to perform all the ordinary duties of a member of the force in question; and that ii) the inability is caused by a medical condition of the body or mind (but excluding vulnerability to such a condition); and that iii) the inability is likely to endure for the foreseeable future.[14]The first matter is a question of pure fact. The second and third matters are also questions of fact, but they will need to be resolved with the benefit of expert medical evidence.[15]Where a question of permanent disablement arises the first step in the procedure is that a Selected Medical Practitioner ("SMP") is appointed to make the initial determination. He provides a report and a certificate Under the old procedure he just supplied a certificate. Now he has to supply a report but the practice of supplying a certificate as well has persisted. . If the officer does not like the decision of the SMP he can appeal to the PMAB, which in effect determines the matter de novo, although obviously the determination of the SMP will be part of the material before it. Curiously, there is no right of appeal afforded to the Police Force if it wishes to challenge the decision of the SMP. In that event it has to seek judicial review. That is what happened in R (Northumbria Police Authority) v Broome [2006] ICR 555.[16]I now turn to the facts of this case. The claimant joined the Derbyshire Police in 1985. He was a diligent and conscientious officer and was promoted to Sergeant in 1997. He was transferred to the fraud squad (later the economic crimes unit ("ECU")) in 2004. Things seemed to start going wrong for him in 2006 when his marriage broke down. He moved out of his matrimonial home and went to stay with a friend, who was a fellow police officer in the ECU. That friend became the subject of a police investigation for corruption. The claimant was put under pressure to move out of his friend's house while the investigation continued. Later in November 2008 the claimant was transferred against his will out of the ECU to another department, again because of his friendship with the officer under investigation. This seems to have triggered feelings of anger resentment embitterment and antipathy by the claimant towards his employer, which steadily increased in intensity. His hostile feelings were aggravated when he was accused of underperforming at work. In February 2009 he was signed off work as sick and has not worked since. His GP recorded at that time that he was in a "depressed mood" and that he was under "work-related stress".[17]The claimant consulted Dr Michelle Shepherd, a consultant psychiatrist for an opinion about his mental state. She reported on 29 December 2009. Her diagnosis was that the claimant:
"appears to have an adjustment reaction specifically to issues at work, in the form of a situational anxiety disorder. He is anxious around work issues only … [his] symptoms are unlikely significantly to improve while his legal situation is ongoing. It is also difficult to see how he would feel comfortable working in the responsible role of a police officer given the catastrophic loss of trust that he has experienced with the police force in general. I therefore think that it is unlikely that he will be medically fit to return to work before his usual retirement date of February 2012."
[18]This prompted the claimant to seek early retirement on medical grounds and this gave rise to the procedure I have outlined above. The appointed SMP was Dr Sampson. He concluded that the claimant was not permanently disabled. He wrote in his report on 27 September 2010 that the claimant was "disabled from handling the normal duties of a member of the police force with situational anxiety which is not permanently disabling".[19]The claimant appealed that determination to the PMAB. The Police Federation on behalf of the claimant instructed Dr Maria Isaac, a consultant psychiatrist, to prepare a further report. This was produced on 5 November 2011. It concluded that the claimant "displays a strikingly encapsulated anxiety about return to work, predicated on considerable anger and bitterness against his perceived treatment by his employers. … The anxiety is severe enough to approach phobic intensity. However I could find no evidence of significant underlying psychiatric illness or impairment."[20]At the appeal hearing the claimant was examined by the specialist member Dr Karim Rajput, a consultant psychiatrist, who stated "I would classify him with an ICD-10 diagnosis of anxiety disorder, unspecified (F44.9) and this would include situational anxiety symptoms that have been recorded". The appeal was however dismissed, the Board concluding that successful treatment of his condition was "not unlikely" and that therefore "he is not suffering a permanently disabling psychological condition which prevents him from undertaking the ordinary duties as a PC".[21]The claimant did not seek to challenge that finding in judicial review proceedings.[22]At some point following this determination the claimant's employer began a procedure against him alleging inadequate attendance at work. The Police Federation once again instructed a psychiatrist on his behalf, this time Dr Qureshi, who reported on 24 April 2012. Given that a great deal of emphasis is now placed on that report I shall set out in full his opinions and recommendation:
"1. Mr Sidwell is suffering from PHOBIC ANXIETY DISORDER as a result of stress and anxiety related to work experiences over a number of years. The condition has now entered a chronic phase. 2. This condition is categorised as F40 in the ICD Classification of mental and Behavioural Disorders as published by the WHO. 3. The secondary diagnosis is MIXED AFFECTIVE DISORDER (predominantly anxiety) with depressive reaction and is characterised by the following: a. Anxiety b. Depressed mood c. Inability to relax d. Sense of foreboding and helplessness e. Insomnia 4. His experiences at work have caused cumulative trauma and distress which has been further compounded by the inability of the Police Force to deal with the problem effectively and has resulted in him feeling marginalised, a scapegoat and humiliated and has affected his personality. 5. His condition is situational and specific to his workplace which is anxiety provoking and is mentally disabling causing him bodily symptoms like sweating, palpitations and flutters. 6. He no longer has any trust in the Police Force to give him support and respect and he feels abused and traumatised. 7. There is evidence that any desire on the part of the Police Force for him to return to work would simply not be conducive to his mental health and may adversely impact on his emotional and personal life. 8. In my opinion he has now reached the point where he is no longer effectively able to undertake his duties and he is permanently disabled to pursue his career with the Police Force. 9. I feel strongly that if this matter had been dealt with expeditiously, sensitively and professionally this situation might not have become chronic. I would strongly urge that he be allowed to retire and a package given to him which is fair and in keeping with his service record. 10. In my opinion his psychiatric illness will require comprehensive treatment but only after the case has been resolved. 11. His psychiatric condition requires further psychotherapy and pharmacotherapy. I expect meaningful improvement with therapy to take place over the next twelve months or so."
[23]At some point the procedure I have outlined above at para 15 was invoked in the context of the poor attendance proceedings initiated against the claimant by his employer. Dr Geoffrey Davies was appointed as SMP. He produced a report and a certificate both dated 9 October 2012. His certificate stated that the claimant was suffering from psychological symptoms of anxiety and depression but that he was not permanently disabled from carrying out the ordinary duties of a member of the police force. He wrote:
"The medical situation appears to be agreed by all the doctors who have seen DS Sidwell in that he has psychological symptoms related to his work situation. Also, the medical reports also appear to agree that DS Sidwell would have difficulty in returning to work in the police as his symptoms would almost certainly get worse unless his view of the police changed. The doctors also appear to agree that further treatment is available that would lead to an improvement in DS Sidwell’s condition, provided he left the police. … DS Sidwell’s symptoms are due to vulnerability rather than disablement. Also, I agree that the employment situation has caused the medical symptoms He has a vulnerability to being in the police but does not have a permanent disablement."
[24]The claimant appealed this determination. As I have stated, the appeal was heard on 21 June 2013. The claimant was examined on that day by the specialist member Dr Nehaul. Dr Qureshi was present and was questioned. Dr Nehaul pointed out that Dr Qureshi's second diagnosis of Mixed Affective Disorder could not be right as under the ICD 10 definition at F38 this disorder is characterised by at least one fairly long episode of mania or hyper-mania and there was no evidence of that in this case. This lead Dr Qureshi to replace that diagnosis with one of Mixed Anxiety and Depressive Disorder (ICD 10 at F41.2).[25]The record of Dr Nehaul's examination does not say very much about his own independent findings. He says that the claimant did not demonstrate "significant mental illness" and that "he was not someone who [he] would consider to be suffering from such a severe illness that he was permanently disabled from working as a police officer". Dr Nehaul devotes rather more words to demolishing Dr Qureshi's diagnoses, including the new one as mentioned above. He stated that the diagnosis by Dr Qureshi of Phobic Anxiety Disorder could not be right as this needed an anxiety reaction to a specific well-defined external object or situation and none had been identified. The diagnosis of Mixed Affective Disorder could not be right for the reason set out above. The new alternative diagnosis of Mixed Anxiety and Depressive Disorder was in his experience "unlikely". Dr Nehaul posited that the claimant might be suffering from Situational Anxiety but in his opinion if he was it was not severe enough to lead to disability.[26]The Board's decision is set out quite shortly over 1½ pages. It disagreed with Dr Qureshi's phobic anxiety and mixed anxiety and depression diagnoses. It stated that the claimant did not meet the diagnostic criteria in ICD 10 for such a condition. It further stated that on the examination performed by Dr Nehaul no abnormality could be found which would prevent the claimant from carrying out the ordinary duties of a police officer. There was no evidence of a permanent disabling medical condition. Any medical condition present was amenable to treatment. Importantly, it recorded that Dr Qureshi accepted this.[27]Its conclusion was in these terms:
"Whilst having enormous sympathy for the position in which Mr Sidwell finds himself, the unanimous decision of the Board is that he does not have a permanent disabling medical condition which would prevent him from carrying out the ordinary duties of a Police Officer and therefore the appeal is rejected."
[28]On behalf of the claimant Mr Westgate QC challenges this determination on the following grounds: i) There were errors of law. First the Board did not apply the correct legal test concerning the first matter in para 13 above. They did not ask the question concerning this particular police force but just dealt with the matter generally. Second the Board was wrong in law to regard itself as conclusively confined when determining whether a medical condition existed by the classification in ICD 10. ii) The decision was inadequately reasoned. It did not tell the claimant why he had lost or how. iii) The decision was perverse particularly in its rejection of Dr Qureshi's opinion. It relied decisively on Dr Nehaul's demolition of Dr Qureshi, where that demolition can be shown itself to have been faulty.[29]On behalf of the interested party, Derbyshire Constabulary, Mr Beggs QC states that this was a classic exercise in fact finding by a specialist tribunal where there was an honest disagreement between Dr Qureshi and both the SMP and the specialist member, and that in preferring the latter opinions the Board was acting squarely within its legitimate remit.[30]I deal first with the alleged errors of law. It is true that the Board did not expressly ask itself whether the condition of the claimant prevented him from carrying out all the ordinary duties of an officer in the Derbyshire Constabulary. However I regard this as a very minor error which had no bearing on the result. Plainly the Board asked itself the basically correct question. Even if this were a material error it would only be in play if it could be shown that the Board was wrong in its conclusion that there was no medical condition here which caused the inability to perform the duties. If that was a correct finding then its error on the first matter becomes immaterial. The same point applies to the finding of permanence. I reiterate that a finding of permanent disablement can only be made if all three matters I have set out in para 13 are proved. If one of them is not proved then the finding cannot be made, and it matters not if a slightly incorrect test is applied in relation to one other of those matters.[31]I do not accept that the Board made any error of law in determining whether or not a medical condition existed by reference to the classification in ICD 10. In the case of Broome at para 26 Bennett J stated:
"Regulation A12(5) of the Regulations defines infirmity, so far as the instant cases are concerned, as a medical condition. The word “medical” is important because one must look to see if the “condition” is a condition recognised in the medical world. For that purpose there can be no better guide than by looking at internationally recognised, medical conditions."
And at para 35:
"As I have said, the vital words in regulation A12(5) are “medical condition”, so far as the instant cases are concerned. In my judgment the merit in construing those words as a condition recognised by medicine is that it should curtail or eliminate disputes as to whether a concept like “vulnerability” is or is not a medical condition. If it does not come within, for example, the International Classification of Diseases, 10th Revision or the Diagnostic and Statistical Manual of Mental Disorders, 4th Revision, then all selected medical practitioners have strong, authoritative guidance that it is not considered to be a medical condition."
[32]I do not accept that the decisions inR v Dhaliwall [2006] 2 Cr App R 24 or R v Chan Fook [1994] 1 WLR 689 prevent a PMAB from relying on ICD 10 to determine whether a medical condition exists. Obviously the Board must not be overly prescriptive but I would have thought that for the great majority of cases of mental disorder ICD 10 would be the starting point and the usual finishing point.[33]In any event it is hard for Mr Westgate to argue this point given that Dr Qureshi himself justified his first and substituted second diagnoses by reference to their descriptions in ICD 10.[34]I turn to the charge that this decision was inadequately reasoned. Mr Westgate relies on R (London Fire and Emergency Planning Authority v Board of Medical Referees) [2007] EWHC 2805 (Admin) at paras 36-41. He submits that a Board of Medical Referees is required to give reasons for its decision that need not be elaborate but must be sufficient to explain to the parties why they have lost and why (if it is the case) they have preferred the evidence of one expert over another. They must grapple with the main issues raised. He states that the Board here has signally failed in its obligations.[35]I disagree. To my mind the reasoning has the inestimable virtue of brevity. The claimant knew clearly from it that the Board preferred the opinions of the SMP and its specialist member as to whether there was a permanent medical condition here which had the effect of rendering him unable to perform his duties. I reiterate that this court should not expect standards of reasoning and judgment writing from a PMAB equivalent to those of the higher appellate courts in this country. In my opinion the decision here was well and clearly reasoned.[36]I turn to the final charge. This is very difficult territory for Mr Westgate QC as in effect he asks me to overturn a finding of fact. He does make some good points however. It is clear that the Board was heavily influenced by the demolition of Dr Qureshi's diagnoses by Dr Nehaul. Yet in some respects that demolition itself is faulty. For example Dr Nehaul says that the diagnosis of Phobic Anxiety is insupportable as no external situation or object is identified. But in para 5 of his views, which I have set out above, Dr Qureshi specifically refers to the claimant experiencing anxiety when confronted with his workplace. Dr Nehaul's dismissal of the alternative second diagnosis of Mixed Anxiety and Depressive Disorder as being "unlikely" is hard to square with the quote that he sets out from ICD 10 at F41.2 that it is frequently seen and that many cases exist. I have to say that this uncritical reliance by the Board on the perhaps over-strong views of its specialist member has caused me considerable concern.[37]Notwithstanding this pronounced concern I nonetheless conclude that the Board acted within its legitimate remit in preferring the opinion of Dr Nehaul. Put another way, I cannot say that the board's decision was so contrary to the weight of the evidence as to invalidate its conclusion.[38]I do not have the same concern in relation to the Board's finding that whatever condition the claimant had, it was not permanent. Mr Westgate argues that:
"If the C’s submission above as to inability and medical condition are accepted then this cannot stand as an independent reason to support the Board’s decision because any decision as to permanence will be affected by its error in failing to recognise that the C is suffering from a medical condition"
[39]I do not agree. I have set out above the Board's conclusion that the medical condition present (if any) is amenable to treatment and that Dr Qureshi accepted this. I do not see how this finding can be challenged. Put another way, even if the Board had accepted Dr Qureshi's view that there were present one or both of his diagnoses it would in my view have reached exactly the same conclusion about permanence having regard to Dr Qureshi's acceptance as recorded in the reasons, which I set out in full:
"Dr Qureshi in his evidence was quite clear that even if he was correct in relation to the diagnosis, he does accept that this is amenable to appropriate treatment; and either the treatment or merely Mr Sidwell being finally dissociated from the Police Service, is likely to bring about a resolution to any medical treatment he might have."
[40]My conclusion is therefore: i) There may have a been a minor immaterial error in addressing the first matter mentioned in para 13 above concerning the claimant's ability to perform his duties. ii) The Board was entitled to prefer the opinion of Dr Nehaul to that of Dr Qureshi as to whether there existed a medical condition which caused the relevant inability. iii) The Board was plainly right to find that whatever condition (if any) the claimant suffered from, it was not permanent.[41]For all these reasons the claim is dismissed.

LATER

[42]After the judgment was distributed in draft I have received an application for permission to appeal from Mr Westgate QC. He advances two grounds which are as follows: i) I erred in holding that the error which I indentified in para 30 above was immaterial. It is said that this error not only fatally undermined condition (i) in para 13 above but condition (iii) also. ii) I erred in failing to decide that the Board's decision was irrational and/or inadequately reasoned by rejecting Dr Qureshi's diagnoses without adequate explanation.[43]By CPR 52.3(6) permission may only be granted where(a) the court considers that the appeal would have a real prospect of success; or(b) there is some other compelling reason why the appeal should be heard.[44]I am not satisfied that either limb is met here. I have reconsidered my para 30 and am satisfied that is completely correct. Equally I am satisfied that pars 35 – 37 contain no error. I do not agree that there is a tension between the principles in Re A and L as referred to in para 6 and what I have stated in para 7. On the contrary I consider that they are consistent. I do not agree that this aspect is one that I should decide to send to the Court of Appeal under the second limb. ________________________________________

Cited in 1 later judgment