PETITION OF LOTHIAN AND BORDERS POLICE v. DR ALISON WEST FOR JUDICIAL REVIEW

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OUTER HOUSE, COURT OF SESSION
P675/03	OPINION OF LADY PATON in petition of LOTHIAN AND BORDERS POLICE BOARD Petitioner; against DR ALISON WEST Respondent: for Judicial review of a medical certificate issued under regulation H2(3) of the Police Pensions Regulations 1987 ________________

Petitioner: Swanson, Solicitor Advocate; Maclay Murray & Spens

Respondent: No appearance

Interested Party (Mrs MacLeod): Armstrong, Q.C.; Allan McDougall

10 June 2004

Police injury award

[1]On 21 January 2000, Mrs. Catherine MacLeod (date of birth 1.3.62), a police officer with over 20 years service, left work and drove to hospital. She there gave birth to a premature baby. The baby was very ill, and remained in intensive care for many weeks.

[2]At the end of her maternity leave Mrs. MacLeod went on sick leave, suffering from depression. Ultimately she was retired on grounds of ill-health.

[3]The certifying medical practitioner considered that Mrs. MacLeod was permanently disabled, but that her disablement was not the result of an injury received in the execution of duty. On appeal, a medical referee Dr. Alison West (the respondent) certified that Mrs. MacLeod was permanently disabled as a result of a condition of anxiety and depression. She also certified that the condition was the result of an injury received in the execution of duty, subsequently explained in a report to have arisen from stressful, unsupportive work conditions and difficulties with work colleagues, all of which made a significant contribution to the development of a stress-related illness. Dr. West's decision entitled Mrs. MacLeod to a police injury award.

[4]The petitioner, as the paying authority, seeks reduction of the medical referee's ruling. The petitioner contends that her decision was erroneous, ultra vires, and unreasonable in the sense defined in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223.

Police pensions regulations

[5]Regulation B4 of the Police Pensions Regulations 1987 (S.I. 1987 No.257) provides:

"(1) This regulation shall apply to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty ...

(2) A person to whom this regulation applies shall be entitled to a gratuity and, in addition, to an injury pension ..."

[6]"Injury" is defined in Schedule A as including:

"any injury or disease, whether of body or of mind, 'injury received in the execution of duty' has the meaning assigned to it by Regulation A11 and 'the result of an injury' shall be construed in accordance with Regulation A13 ..."

[7]The regulations further provide:

"A11 (1) A reference in 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) For the purposes of these regulations 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 or while on a journey necessary to enable him to report for duty or return home after duty ...

A12 ...(2) Subject to paragraph (3), disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be ...

A13 For the purposes of these regulations disablement ... shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement ...

H2 ... (2) If the person concerned is dissatisfied with the decision of the selected medical practitioner as set out in his certificate, he may ... 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 (hereafter 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 regulation H3, be final."

Guidance from the Scottish Public Pensions Agency (SPPA)

[8]The Scottish Public Pensions Agency (SPPA) have issued a document entitled "General Guidance to Medical Referees", dated August 2002. It is intended to provide assistance to medical referees hearing appeals under the Police Pensions Regulations 1987.

[9]Paragraph 20 provides inter alia:

"The regulations (in the definitions of Schedule A) specify that injury includes any injury or disease, whether of body or mind.

• The regulations (reg A11) provide that an injury received in the execution of duty is one received in the execution of duty as a constable including any injury received on duty or a journey necessary to enable the officer to report for duty or return home after duty. However, where no single moment of injury can be identified we suggest that to all intents and purposes the question for you is:-
• whether the injury was caused by or received on police duty as opposed to domestic or other circumstances not related to police duty - bearing in mind the following points:
• it is necessary to establish a causal connection between the injury and service as a police officer;
• police duty should not be given a narrow meaning. It relates to all aspects of the officer's work;
• the Court of Appeal has held that stress-related illness through exposure to police disciplinary proceedings does not count as an injury received in the execution of duty;
• police duty arguably does not extend to a sporting activity for the police, unless a clear connection with duty as a constable is established..."

Whether disablement the result of an injury received in the execution of duty

[10]Mrs. MacLeod began serving as a police officer in 1979. On 21 January 2000 she gave birth to a premature baby son. She went on maternity leave. She did not thereafter return to work. At the end of her maternity leave, she went on sick leave, suffering from depression.

[11]In April 2002, she was referred to a medical practitioner in terms of Regulation H1 of the Police Pensions Regulations 1987. The purpose of the referral was to ascertain whether or not she was permanently disabled. The medical practitioner selected was Dr. David Jones, a general practitioner employed by the Occupational Health and Safety Advisory Services. He had no particular expertise in psychiatry.

[12]Dr. Jones concluded that Mrs. MacLeod was suffering from post-natal depression. He considered that she was permanently disabled, but that her disablement was not the result of an injury received in the execution of duty. He issued a certificate to that effect dated 9 April 2002 in terms of regulation H1(4) of the regulations. On the basis of that certificate, Mrs. MacLeod was retired on grounds of ill-health with effect from 9 April 2002.

[13]Mrs. MacLeod appealed against the certification. The Secretary of State appointed the respondent, Dr. Alison West, a consultant psychiatrist at Queen Margaret Hospital, Dunfermline, as the medical referee to decide the appeal.

[14]The appeal was heard on 7 February 2003. Dr. West issued a certificate dated 24 February 2003 in terms of regulation H2(3). That certificate stated that Mrs. MacLeod was permanently disabled as a result of a condition of anxiety and depression; and that the condition was the result of an injury received in the execution of duty.

Dr. West's report

[15]In a report dated 25 February 2003 number 6/2 of process, Dr. West gave reasons for her decision. After a general introduction, Dr. West dealt with the case under various headings, namely "psychiatric history; presenting complaints; present symptomatology; present situation; personal history; present medication; past psychiatric/medical history; oral evidence from Dr. Jones; mental state examination; consideration of legal submissions; guidance from SPPA; issues under consideration in appeal; and opinion".

[16]From that report, a picture emerges of Mrs. MacLeod as a conscientious police officer with some obsessional personality traits. She took a pride in her work. She attracted good reviews and assessments. In general, she gave no sign of experiencing any pressures or stress.

[17]Despite these positive features, Mrs. MacLeod was in fact suffering stress. She found relationships with some of her colleagues difficult. She found her work-load heavy, and her working environment stressful and unsupportive.

[18]Dr. West, in paragraph 3 of her report, explained that the report was based upon her interview with Mrs. MacLeod; information from submissions made by both parties; Dr. Jones' letters; a psychiatric report by Dr. Alex Stewart; statements from Mrs. MacLeod's work colleagues; and the Guidance from the SPPA.

[19]Dr. Alex Stewart's report dated 25 September 2002, number 7/3 of process, recorded difficulties which Mrs. MacLeod experienced in 1996 when posted to Dalkeith. A detective inspector regularly interfered with her work. He also belittled her. As a result of these difficulties, she was off work for four months towards the end of 1996. She was diagnosed as suffering from work-related stress. She may also have been depressed. She underwent counselling with an occupational health nurse.

[20]Subsequently, in 1997, Mrs. MacLeod had further difficulties when another police colleague stated that he did not want to work with female officers. Mrs. MacLeod began a formal complaint procedure, but then received an apology from the officer concerned.

[21]Dr. Stewart's report outlined further stresses experienced during Mrs. MacLeod's final period in service, when she was working in the Licensing Department. On one occasion, for example, she was called out to a potential sudden death, only to find that her own father was involved. Fortunately, he survived. Mrs. MacLeod felt over-burdened due to staff shortages. She suffered physical illness in the form of a chest infection. She found it difficult to achieve a meeting with the personnel officer. Latterly she was working virtually full-time (including taking files home), although nominally she was on "light duties".

[22]Under the heading "Mr. Norman MacLeod seen separately", Dr. Stewart's report recorded that Mrs. MacLeod's husband had noticed a dramatic change in her personality from around 1997, at the time of the formal complaint against her colleague. Under the heading "Mental state examination", Dr. Stewart further noted that Mrs. MacLeod herself gave a "detailed description of the events particularly from 1995 when despite giving her very best, she felt she was undermined by her supervisors".

[23]In his Diagnosis, Dr. Stewart noted:

"Mrs. MacLeod has been suffering from a very severe depressive reaction DSM4 criteria fulfilled for major depression which has arisen over the last three years of her service when she had difficulty with two of her supervisors and felt generally unsupported despite giving her very best ..."

[24]In his Opinion, Dr. Stewart concluded:

"This lady gives no previous history of prior psychiatric illness and from all accounts has been an extremely conscientious officer who has given her best. She came under stress following conflict with two superior officers who did not give her proper support and indeed demeaned her treating her differently from her colleagues because she was a woman. In addition she had to cope with a short staffing situation in the Licensing office during a period when there was an upsurge in requests for special licences prior to the millennium. Despite being pregnant and supposedly on light duties, she was working full time in the Licensing office increasingly under pressure and uncertain about what was to happen when a colleague was transferred out without any replacement being identified. It was while she was under severe pressure in the Licensing office that she went into premature labour.

Since being away from her police duties she made almost a complete recovery and it is my opinion that the severe depressive reaction which she has been suffering and which is duty related has almost completely remitted ..."

[25]Dr. West's own report, based partly on Dr. Stewart's report, reflected a similar history and diagnosis. Paragraphs 24 to 29 of Dr. West's report were in the following terms:

"24.There is no doubt that delivering at 25 weeks and having an extremely ill baby to look after would increase Mrs. MacLeod's stress level, and I note that she was diagnosed as having a post natal depression which was adequately treated with Seroxat ...

25. It is my opinion that Mrs. MacLeod suffered stress related problems prior to becoming pregnant which were related to a number of incidents over the years where she felt denigrated and unsupported by a number of her work colleagues and her managers. Her obsessional personality traits made her more vulnerable to finding it difficult to cope with this particular type of stress while at the same time it made her an extremely driven and thorough police woman and unlikely to be someone who would complain for fear of being seen weak and vulnerable. On top of this when she went into premature labour and had a very sick baby she became more acutely ill and developed post natal depression from which she has now substantially recovered, although she still has anxiety symptoms. What has happened, however, is that her changed circumstances have caused her to have low self esteem and confidence. I think the reasons for this are mainly that she invested a lot of her self esteem and confidence in her role as a police officer and that has now been taken away from her because she retired on medical grounds. Although intellectually I am sure she realises this is the best decision, I think emotionally it is very difficult for her to come to terms with it. She is confident in her role as a good mother.

26. I would hope that her anxiety symptoms would slowly resolve over time, especially once the process of the appeal hearing is completed, and I would certainly anticipate she may well wish to go back into paid employment sometime in the future.

27. My overall impression was that it wasn't the police work that she had to perform that she found stressful, but rather that she found the environment she was working within unsupportive and stressful. Often people who have more obsessional personality traits find these sort of issues more stressful than other people who have not invested so much of themselves in achieving their very high targets within the work situation. The cases of Phillips and Ireland make it clear that increased vulnerability, in terms of personality, should not preclude officers from obtaining an injury [award] and the cases of Fagin and Kellam would suggest that work circumstances and relationships with colleagues are also important in terms of determining whether performing your duty as a police officer has been causal in leading to your injury.

28. PREMATURE BIRTH

With regards to whether her performing her duties as a police officer leading to the stress which brought on her premature birth, I do not feel I am in a position to give any opinion.

However, psychologically there is no doubt that having had to give birth and look after a premature baby is extremely stressful and has contributed to her problems which are now resolving.

29. CONCLUSION

• I am of the opinion that Mrs. MacLeod's anxiety and depression are related to an interaction of stress at work, her personality traits and the birth of her very ill baby.
• I cannot comment with regard to causation of her premature birth and it may be worth considering asking for an obstetric opinion.
• Considering the legal [precedents] my understanding is that duty as a policeman includes the work-culture and circumstances and I am of the opinion that working within the environment of the police force has been a significant contributor to her becoming unwell from anxiety and depression.
• She is also, because of her personality traits, vulnerable to becoming stressed. However, again it is clear from legal [precedents] that that does not preclude her from being eligible for an injury award.
• I am therefore of the opinion that her anxiety and depression was the result of an injury "caused by or received on police duty as opposed to domestic or other circumstances not related to police duty".

Judicial review

[26]In this petition for judicial review, the petitioner seeks:

• reduction of the decision that Mrs. MacLeod's condition was the result of an injury received in the execution of duty;
• the expenses of the application; and
• such further order as to the court seems just.

[27]The petitioner's pleas-in-law are as follows:

1.The respondent's decision that Ms MacLeod's permanent disability was the result of an injury received in the execution of duty as a police officer being unlawful et separatim unreasonable, it should be reduced.

2.Alternatively, the respondent's decision having proceeded upon the application of the wrong tests, the exclusion of relevant factors, the inclusion of irrelevant factors, being unsupported by proper reasons and findings and in any event being wholly unreasonable is ultra vires and should be reduced.

[28]A first hearing in the judicial review took place on 11 July and 7 November 2003. Submissions were made on behalf of the petitioner and on behalf of the interested party, Mrs. MacLeod. There was no appearance for the respondent, Dr. West.

Submissions on behalf of the petitioner

[29]Mrs. Swanson, solicitor-advocate, referred to R(Stunt) v Mallett [2001] I.C.R. 989, and in particular to the Court of Appeal's over-view of the law at paragraph 27 et seq. Reference was also made to R. v Kellam ex parte South Wales Police Authority [2000] I.C.R. 632, at page 635 et seq.; R. v Fagin, ex parte Mountstephen, unreported, 1996 CO/92/95; Phillips v Strathclyde Joint Police Board, 2001 S.L.T. 1271; and Ireland v Strathclyde Joint Police Board, 17 August 2001, Lord Hamilton (unreported).

[30]It was submitted that paragraph 20 of Dr. West's report dated 25 February 2003 contained errors of law.

[31]First, while the case of Stunt did indeed relate to disciplinary hearings, Dr. West erred in stating that Stunt was not relevant to the present case. As Simon Brown L.J. pointed out at paragraph 34, what was important was that the condition had been "materially brought about by stresses suffered actually through being at work". Phillips L.J. made similar observations at paragraph 56. The circumstances must have impacted directly on the physical or mental condition of the officer while he was carrying out his duties, causing or substantially contributing to physical or mental disablement.

[32]The second error of law was to state that "work circumstances, including what happens while somebody is working as a policeman in relation to interactions with other colleagues, is pertinent". To be "pertinent" was not sufficient; the work circumstances had to be substantially causally connected with the injury suffered.

[33]Thirdly, paragraph 20 of the Guidance issued by the Scottish Public Pensions Agency dated August 2002 (quoted above in paragraph [9]) did not go so far as Dr. West suggested.

[34]There were further errors of law in paragraph 27 of the report. In that paragraph, Dr. West referred to Fagin and Kellam, and commented that these cases suggested that "work circumstances and relationships with colleagues [were] also important in terms of determining whether performing [one's] duty as a police officer [had] been causal in leading to ... injury." That was an error in law. Work circumstances and relationships were not merely "also important" but were crucial in that an applicant had to prove that they had a causal connection with the injury. Where both work circumstances and domestic circumstances were referred to, a balancing exercise had to be carried out in terms of Stunt and Kellam. It had to be proved that the work circumstances had a causative role. Dr. West had failed to investigate the work circumstances in order to determine whether they had a substantive causative effect. In paragraphs 19, 20, and 27 of her report, Dr. West failed to deal with the crucial determining factor, and failed to give due consideration to the balancing exercise between work circumstances and domestic circumstances which had to be carried out. Her third conclusion in paragraph 29 of her report was accordingly flawed.

[35]The petitioner's solicitor-advocate then turned to examine the facts, in order to test the referee's third conclusion. Number 7/1 of process comprised Mrs. MacLeod's submissions to the medical referee. Number 7/2 of process was a ring-bound volume containing the documentation and submissions which the petitioner placed before the medical referee.

[36]At pages 37 et seq. of the petitioner's ring-bound volume, was a manuscript statement by Mark Gilhooley, a colleague of Mrs. MacLeod's, describing the generally helpful attitude on the part of Mrs. MacLeod's colleagues; nothing untoward in Mrs. Macleod's behaviour; and no undue pressure or heavy work load. The medical referee had been in possession of that information. However the referee also had the apparently conflicting information recorded in paragraph 6 of her report concerning problems which Mrs. MacLeod said she had experienced while in the Licensing Department. Those problems included staff shortages; a chest infection contracted in May 1999; a promise of light duties (perceived not to have been fulfilled); and a feeling that the work-load had increased, compounded by early morning sickness, irritability and exhaustion.

[37]Against that background, the petitioner's solicitor-advocate submitted that the referee, in reaching the conclusions set out in paragraph 23 of her report, had not properly taken account of the evidence before her. She made no reference to the statements by Mrs. MacLeod's colleagues. She failed to weigh up the work circumstances. She gave undue weight to what Mrs. MacLeod had to say, and not enough weight to her colleagues' evidence. Clearly there was a factual dispute between Mrs. MacLeod and her colleagues, as to whether she was overworked and unsupported. So the referee should have made reference to the evidence of Mrs. MacLeod's colleagues. She had not done so. It was therefore impossible to tell what weight she gave to those factors.

[38]The referee also had a medical report from Dr. Alex Stewart, Consultant Psychiatrist, dated 25 September 2002.

[39]The proper approach as set out in Kellam was to carry out a complicated balancing exercise between work circumstances and domestic circumstances. Dr. West had not conducted the reasoning process in the correct way.

[40]The solicitor-advocate for the petitioner ultimately submitted that her examination of the facts disclosed an incomplete analysis of the facts. There had been a failure properly to assess whether the work circumstances had a causative effect. In all the circumstances, the referee's decision was unreasonable, and should be reduced.

[41]The second argument was that the referee's decision was ultra vires. There were matters which the referee should have considered, but had not. There were irrelevant matters which should not have been taken into account, but which had been taken into account. The matters criticised were set out in paragraph 14 of the petition, as follows:

" ...In particular, the respondent concluded that Ms MacLeod's stresses had been experienced at work, without taking account of the fact that Ms MacLeod was absent from work on maternity leave since 21 January 2000 and had not returned to work. The respondent failed to take account of the fact that Ms MacLeod was absent from work when her symptoms of anxiety and depression manifested themselves and when she was prescribed anti-depressants. The respondent failed to take account of the fact that Ms MacLeod had only taken time off work for a short period from July 1996 to November 1996 on grounds of stress. The respondent failed to take account of the fact that Ms MacLeod had also been diagnosed as suffering from post natal depression. In particular, the respondent concluded Ms MacLeod's symptoms were related to the birth of her very ill baby. She failed to consider whether this had materially contributed to Ms MacLeod's injury ..."

[42]Reference was made to Wednesbury, cit. sup.; and Wordie Property Co. Ltd. v Secretary of State for Scotland, 1984 S.L.T. 345. The solicitor-advocate for the petitioner then summarised the petitioner's contentions. The referee had not properly exercised the discretion delegated to her by the Secretary of State. There were material errors of law. Irrelevant considerations had been taken into account. Relevant considerations had been left out of account. The court should sustain the first and/or second plea-in-law for the petitioner, and reduce the medical referee's decision.

Submissions on behalf of Mrs. MacLeod

[43]At the continued first hearing on 7 November 2003, Mr. Armstrong, Q.C., for the interested party Mrs. MacLeod, submitted that the issue was how the medical referee ought to have dealt with the competing stresses arising from, on the one hand, Mrs. MacLeod's execution of her duties in the police force, and on the other hand, her domestic circumstances relating to the premature birth of her baby son.

[44]The facts: Senior counsel initially referred to the report by Dr. Alex Stewart, consultant psychiatrist, detailing the hard and often harrowing work carried out by Mrs. MacLeod in her early years in the force. A similar narration could be found in paragraphs 6 to 9 of Dr. West's report. Reference was then made to the two statements by police colleagues (Martin Gilhooley and John Hunter). Each officer stated that he had seen no signs of stress or unhappiness on the part of Mrs. MacLeod, nor heard any complaints about work-load or lack of support. The next document referred to was a performance review dated 5 October 1999, carried out about 4 months before the premature birth of her baby. The review gave a uniformly excellent picture of Mrs. MacLeod as a police officer.

[45]The principles to be applied: Reference was made to Kellam, cit. sup., Stunt, cit. sup., and Phillips v Strathclyde Joint Police Board, 2001 S.L.T. 1271. The injury had to be suffered in the execution of duty as a police officer; but it was not necessary that police duty was the sole cause of the injury, provided that there was a substantial causal connection between the injury suffered and the execution of duty as a police officer. The fact that an officer might have an "eggshell" personality would not preclude an injury award. "Duty" was not to be given a narrow meaning. All work circumstances were encompassed, including things said or done to the officer by colleagues at work: Kellam, page 645B-D. In effect, the concept of police duty covered the whole experience while working as a police officer, including relationships with others, staffing levels, work-loads, and so on.

[46]Further, the decision of the medical referee was not to be considered in a rigid way, as if it were a legal document. The referee's decision was both a quasi-judicial and a medical opinion. In the present case, the Secretary of State had chosen a psychiatrist. Counsel submitted that the assessment of the cause of injury suffered by Mrs. MacLeod was essentially a matter of psychiatric opinion, guided by the necessary legal considerations: Kellam, page 646B. Nor was it necessary for the referee to deal specifically with every material consideration, provided that it could be seen that she had had regard to the necessary, material considerations: Bolton Metropolitan District Council v Secretary of State for the Environment (1996) 71 P.& C.R. (H.L.) 309, at page 313 (a planning case, in which the need for reasons was even more stringent than in the present case as the Tribunals and Inquiries Act 1971 applied). Counsel's primary submission was that Dr. West had dealt with all relevant considerations. But esto she had not, Bolton applied, and Dr. West had certainly satisfied the test set out in Bolton.

[47]The petitioner's position: Counsel sought to state his understanding of the petitioner's position. The principal argument was that Dr. West had failed to be seen to be carrying out a balancing exercise of the competing weight to be attached to the effect of work circumstances and the effect of domestic circumstances, all in the context of determining whether there was a direct causal connection between the work circumstances and the injury suffered. There were other supplementary alleged errors.

[48]At paragraph 20 of her report, Dr. West had noted that "The case of Stunt ... should be excluded as it relates particularly to disciplinary hearings and is not pertinent to the present situation". Counsel submitted that, in Stunt, the stress in question arose as a result of disciplinary hearings. It was held that such stress should not be regarded as stress qualifying the officer for an additional pension award. Disciplinary proceedings were of a different nature from the execution of police duty. Accordingly Dr. West was right on that basis, and was correct in stating that Stunt was not pertinent.

[49]Dr. West then went on to observe that "The cases of Kellam and Fagin imply that "work circumstances", including what happens while somebody is working as a policeman in relation to interactions with other colleagues, is pertinent." That observation had been criticised by the solicitor-advocate for the petitioner as being an understatement, in that work circumstances were not just "pertinent" but were crucial in assessing whether work had substantially contributed to the injury. However the court was invited not to view the referee's report with undue rigidity. The report had been drafted by a psychiatrist, not by a lawyer. The report contained references to the essential elements of the test. Properly construed, the report made clear that Dr. West had regard to the correct test.

[50]Paragraph 27 of the report had been referred to by Mrs. Swanson as demonstrating error on the part of the medical referee. There the referee had stated that "...the cases of Fagin and Kellam would suggest that work circumstances and relationships with colleagues are also important in terms of determining whether performing your duty as a police officer has been causal in leading to your injury". She was criticised in that the word "crucial" should have been used, rather than the word "important". But counsel's response was that Dr. West had earlier, in paragraph 19, correctly analysed the elements of the test to be applied. What mattered was whether the work circumstances had a substantial causative role.

[51]The principle submission for the petitioner (couched in terms of failing to carry out a balancing exercise) was that Dr. West erred in that she did not attach sufficient weight to the domestic circumstances as against the work circumstances. There was a need to investigate the domestic circumstances before concluding that the work circumstances had a causative role. The way in which the petitioner's submission was put was, that on a proper analysis of Kellam and Stunt, there was a need to carry out a balancing exercise. Counsel contended that the petitioner's submission had been erroneous. There was no need to carry out a balancing exercise, and any attempt to set up such a requirement rested upon an ill-founded analysis of these cases. In Stunt, Simon Brown L.J. appeared in paragraph 37 of his opinion to suggest that the decision in Kellam had been reached because three out of the four factors mentioned had been work-related. But that was in fact a gloss unjustified by the actual decision in Kellam. It was not a question of three factors outweighing one: any one of the factors would have been enough. There was no support for the suggestion that a balancing exercise should be carried out by the referee. A substantial causal connection was enough.

[52]Any psychiatrist carrying out a remit such as that in the present case would, as a matter of professional duty, look at the whole picture, and decide whether particular circumstances were substantially contributory to the injury. That is what Dr. West had done. The proper question was whether there was any substantial causal link between the injury giving rise to the condition, and the police officer's work circumstances. If the answer was in the affirmative, the officer was entitled to the injury award. Dr. West had applied the correct test, and had asked the correct question.

[53]Dr. West's decision: Counsel referred to Dr. West's report, and submitted that it was comprehensive; contained relevant and intelligible reasons; was proper and accurate; and was sufficient to survive the present challenge. Paragraph 3 of her report made clear that Dr. West not only interviewed Mrs. MacLeod, but also took into consideration Dr. Alex Stewart's report, and the SPPA guidance. Paragraphs 6 to 18 outlined Mrs. MacLeod's history and symptoms. In paragraph 19, the referee identified the correct test to be applied. Paragraph 20, read in context, contained no errors of law. Paragraph 21 focused the correct issue: "Whether the anxiety, stress and depression she developed was as a result of injury within the police force". Given what Dr. West had stated earlier, it was necessary for any causal aspect to be substantial: cf. Lord Hamilton in Phillips, cit. sup.

[54]Counsel then gave detailed consideration to paragraphs 22 et seq of Dr. West's report. He submitted that Dr. West had taken into account, and properly dealt with, all material factors. Esto counsel was wrong in that submission, he placed reliance on the case of Bolton, cit. sup. as authority for the proposition that provided the referee had regard to the material factors, it was not necessary for her to deal with every factor in the body of the report. The report comprised proper and adequate reasons. The reasons were rational, reasonable, and intelligible. The petitioners' pleas should be repelled, and the petition refused.

Response on behalf of the petitioner

[55]Mrs. Swanson confirmed that counsel had fairly summarised her argument. Simon Brown L.J. at page 1001 of Stunt had observed that the case of Kellam took "to their limits the principles ... deduced from the earlier cases". The petitioner's position was that Dr. West, by failing properly to consider the case of Stunt, missed the importance of the quantitative test which Simon Brown L.J. outlined. Dr. West had wrongly disregarded Stunt because, in her view, the case concerned disciplinary hearings, and was therefore irrelevant. That was an incorrect approach. Stunt was the first case in which the Court of Appeal had considered the regulations. Stunt also contained a warning from Simon Brown L.J. to be cautious when applying Kellam. In Kellam, matters had been taken to the limit, and the decision could only be justified because most, if not all, of the factors causing the stress were work-related. The petitioner's position was that the correct test was a quantitative test, and that in Kellam it had been important that three out of the four circumstances were "work-related".

[56]It was not enough to have one substantial causal connection with work. The balancing exercise must result in the scales tipping to the "work" side. Counsel for Mrs. MacLeod had suggested that, if work factors were held to have a substantial connection with the condition, then the medical referee need go no further. However the petitioner's contention was that it was necessary to carry out a balancing act to make sure that the scales tipped in favour of work-related conditions. The suggestion that one work circumstance would be sufficient, even if there were ten or twelve domestic circumstances, was not supported by the approach outlined by Simon Brown L.J. in Stunt. On the contrary, a quantitative exercise had to be carried out. That quantitative exercise was necessary even if it were to be suggested that the work circumstances were weightier than the domestic circumstances. The exercise had to be properly carried out, otherwise the decision was challengeable and should be reduced, as in Dr. West's case.

Opinion

[57]Authorities such as R (Stunt) v Mallett [2001] I.C.R. 989 (C.A.); R. v Kellam, ex parte South Wales Police Authority [2000] I.C.R. 632; Phillips v Strathclyde Joint Police Board, 2001 S.L.T. 1271; and Ireland v Strathclyde Joint Police Board, 17 August 2001, Lord Hamilton (unreported) provide the following guidance:-

(1) A medical referee's decision should be looked at as a whole, and without undue rigidity. It should not be scrutinised as if it were a legal judgement. The same benevolent approach should be adopted in the context of a medical referee's decision as would be adopted when considering decisions in, for example, the planning field: Kellam, cit. sup. at page 646B-C.

(2)"Duty" is not to be given a narrow meaning. "Duty" relates not just to operational police duties, but to all aspects of the officer's work, including the officer's work circumstances, events experienced by the officer while at work, and things said or done to the officer by colleagues at work: Kellam, cit sup., at page 645C-E.

(3) It is not necessary to establish that the work circumstances were the sole cause of the injury. As was pointed out in Kellam, cit. sup. at page 645E-G:

"... Mental stress and psychiatric illnesses may arise out of a combination of work circumstances and external factors (most obviously, domestic circumstances). What matters is that the work circumstances have a causative role. The work circumstances and domestic circumstances may be so closely linked as to make it inappropriate to compartmentalise them ... On the other hand, where compartmentalisation is possible (i.e. in the absence of an intimate connection between the private matters and the public duty), I do not read the authorities as laying down any rules that the existence of a causal connection with the private matters is fatal to a claim. Provided that there is also a [substantial] causal connection with the public duty [i.e. work-related circumstances], the test is satisfied ..."

(4) The test of causation should not be applied in a legalistic way, falling as it does to be applied by medical rather than by legal experts: Kellam, cit. sup., at page 644H.

(5) The fact that a particular officer is more vulnerable or susceptible to injury than the generality of his colleagues does not preclude that constable from obtaining an injury award: Phillips, cit. sup.

[58]With the above-noted guidance in mind, I am satisfied that the medical referee in the present case applied the correct test, made no error in law, and reached conclusions which cannot be deemed either ultra vires or unreasonable in the Wednesbury sense.

[59]I accept that parts of the medical referee's report could perhaps have been better phrased. However her report, read as a whole, is clearly directed to ascertaining what caused or substantially contributed to Mrs. MacLeod's condition, and in particular, whether her work as a police officer caused or substantially contributed to her condition.

[60]The references to the case of Stunt in paragraphs 19 and 20 of the report show that the referee took the case into account. The referee certainly sought to distinguish Stunt, as its ratio determined that where stress had been induced by police disciplinary procedure, that could not be regarded as "injury received in the execution of duty". But it does not follow that the referee thereafter disregarded the case altogether, or the general guidance it contains. On the contrary, the referee's whole approach to the facts, and her ultimate conclusion (particularly in paragraph 29) demonstrate that she took the relevant authorities, including Stunt, into account, and applied them appropriately.

[61]It was argued that, in paragraph 23 of her report, the referee made no mention of Mrs. MacLeod's colleagues' statements to the effect that there had been no signs of stress or unhappiness on her part, and no complaints about work-load or lack of support. It was contended that the referee should have made specific reference to the colleagues' evidence, indicating what weight she gave it, and also how she dealt with the discrepancy between that evidence and Mrs. MacLeod's own description of mounting pressures and difficulties (described in paragraph 6 of the report). In my view, it was unnecessary for the referee to give a detailed catalogue of all the evidence, and an express indication of the weight given to particular parts, or an express resolution of every conflicting piece of evidence: cf. dicta in Bolton Metropolitan District Council v Secretary of State for the Environment (1996) 71 P. & C.R. (H.L.) 309, at page 313. As it happens, in relation to this particular part of the evidence, Dr. West's report shows that she accepted that Mrs. MacLeod may well have presented to others as uncomplaining, but adds that such a presentation was entirely in keeping with her obsessional personality traits and did not necessarily indicate absence of stress (paragraph 23). Accordingly this particular criticism is in my view without foundation.

[62]A further criticism was that evidence that Mrs. MacLeod's domestic circumstances had contributed to her condition had either been left out of account, or not properly taken into account in a balancing exercise to be carried out where stress might be attributable to various factors (some work-related, and some domestic). However Dr. West's report specifically describes Mrs. MacLeod's domestic circumstances, and frankly acknowledges that they were productive of stress: see, for example, paragraphs 24 and 25 of the report.

[63]In relation to the weight to be given to the factors contributing to Mrs. MacLeod's condition of anxiety and depression, that was in my view very much a matter for the medical referee. Assessment of the number, weight, and effect of domestic-related stressors as compared with the number, weight, and effect of work-related stressors will undoubtedly play a crucial part in assessing whether work-related circumstances have made a substantial contribution to a condition or illness. But that is what a psychiatrist is well-qualified to assess. I do not accept that, in carrying out that assessment, the referee must use, and record in her report, a precise quantitative or balancing exercise; nor that the referee, before being satisfied about causation, must conclude that the scales have tipped in favour of the work-related circumstances. No such requirements are contained in the regulations, nor in my view can such requirements be read into the authorities. What is required is that the medical referee must be satisfied that the work-related circumstances "substantially contributed" to the illness or condition.

[64]In this case, I am satisfied that the referee applied her mind to the relative contributions of work and domestic circumstances, and came to the view that the work-related circumstances had made a "significant" contribution to Mrs. MacLeod's condition of anxiety and depression. Criticism was of course made of the use of the word "significant". It was said that the proper test was whether the work-related circumstances had made a "substantial" contribution to Mrs. MacLeod's condition. It was contended that, for this reason also, the referee had erred. I do not agree. A "significant" contribution is, on any view, a "substantial" contribution.

[65]In these circumstances I am satisfied that Dr. West applied the correct test.

[66]Applying that test, Dr. West reached the conclusions set out in sub-paragraphs 1 and 3 of paragraph 29 of her report, namely that:

"... Mrs. MacLeod's anxiety and depression are related to an interaction of stress at work, her personality traits, and the birth of her very ill baby.

... working within the environment of the police force has been a significant contributor to [Mrs. MacLeod's] becoming unwell from anxiety and depression."

Those conclusions, and the reasoning leading to them, cannot in my view be faulted as being founded on the wrong tests; or as being unsupported by proper reasons and findings; or as being unlawful, Wednesbury unreasonable, or ultra vires.

[67]I should add, however, that sub-paragraph 5 of paragraph 29 of the referee's report seems prima facie inconsistent with her main conclusions in sub-paragraphs 1 and 3. However I am satisfied that sub-paragraph 5 does no more than echo the language used in the SPPA Guidance (which was no doubt intended to encapsulate the correct principles set out in authorities such as Kellam and Stunt - principles which the referee had in my view already successfully applied when she reached the conclusion set out in sub-paragraph 3). It respectfully seems to me that the part of the Guidance echoed by the referee in sub-paragraph 5 is not well expressed. The wording (" ...we suggest that to all intents and purposes the question for you is:- whether the injury was caused by or received on police duty as opposed to domestic or other circumstances not related to police duty [italics added] ...) seems to imply that, for an applicant to succeed in qualifying for an injury award, the referee must conclude that any illness was purely work-related and was not caused or contributed to (to any extent) by other circumstances such as domestic circumstances. That possible meaning is directly contradictory to the authorities, and also contrary to the correct approach which the referee had in fact adopted before reaching the conclusions in sub-paragraphs 1 and 3. It may be that the relevant part of the Guidance will have to be re-phrased in order properly to reflect Kellam and Stunt.

[68]In the result, therefore, I am not persuaded by the petitioner's first argument.

[69]Turning to the petitioner's second argument, encapsulated in paragraph 14 of the petition: I am satisfied that paragraphs 3, 6 to 9, 23, and 25 of Dr. West's report show that Dr. West took into account a build-up of stresses and mental health difficulties suffered by Mrs. MacLeod long before her pregnancy, commencing from about 1996. Dr. West also took into account the fact that Mrs. MacLeod had been absent from work on maternity leave following upon the precipitate birth of her son on 21 January 2000, and that she had not returned to work thereafter. On the information before Dr. West, she was well entitled to conclude that Mrs. MacLeod had experienced stresses while at work. I am not persuaded that any material factor or period was left out of account.

[70]I am also satisfied that the report demonstrates that Dr. West took into account the fact that symptoms of anxiety and depression manifested themselves when Mrs. MacLeod was absent from work, at which stage she was prescribed anti-depressants.

[71]Paragraph 15 of the report notes the earlier involvement of the psychiatrist Dr. Stewart (whose report reflected work-related stress being suffered by Mrs. MacLeod prior to her pregnancy); the fact that Mrs. MacLeod was off work for "a period of months" towards the end of 1996 because of difficulties experienced while working with the inspector in the same department; a diagnosis of "work-related stress"; and a reference to counselling sessions. Accordingly in my view it is clear that Dr. West took into account the fact that Mrs. MacLeod was off work on grounds of stress for only a short period from July 1996 to November 1996.

[72]Paragraphs 8 and 24 of the report demonstrate that Dr. West took into account the fact that Mrs. MacLeod had also been diagnosed as suffering from post natal depression.

[73]Finally, in paragraphs 24, 25 and 29 of her report, Dr. West noted that the birth of Mrs. MacLeod's very ill baby had materially contributed to her condition of anxiety and depression.

[74]I am not therefore persuaded that the petitioner's second argument has any merit.

[75]Even if I am wrong in relation to any or all of the discrete complaints made in paragraph 14 of the petition, in my view counsel for Mrs. MacLeod was correct in contending that the referee gave sufficiently full reasons when tested by the guidance given in Bolton Metropolitan District Council v Secretary of State for the Environment, (1996) 71 P.& C.R. (H.L.) 309, at page 313.

Conclusion

[76]In the circumstances, I shall repel the petitioner's first and second pleas-in-law, sustain Mrs. MacLeod's second plea-in-law, and refuse the petition. I reserve any question of expenses.