Sussex Police Authority, R (on the application of) v Cooling & Anor

For an injury award under the Police Pensions Regulations 1987, psychiatric disablement must be substantially caused by an injury received while the officer was on duty or otherwise in the execution of duty. The fact that disciplinary or criminal proceedings arise from the officer’s status as a constable does not, by itself, satisfy that requirement. An officer suspended from duty is not on duty. Continuing employment, or attempting to return to work, does not convert the effects of suspension or disciplinary proceedings into an injury received in the execution of duty. Causation is assessed in a common-sense medical manner, but the statutory requirement remains controlling. A medical practitioner’s contrary legal conclusion is amenable to judicial review.

The Sussex Police Authority sought judicial review of a decision by Dr Nicholas Cooling, acting as the selected medical practitioner under regulation H1(2) of the Police Pensions Regulations 1987. He had decided that Mr French, a former detective chief inspector, was permanently disabled by an injury received in the execution of duty and assessed his disablement at 53 per cent.

Mr French’s psychiatric illness followed a prolonged criminal investigation, disciplinary process, suspension and alleged lack of support after his return was attempted. There was no challenge to the finding of permanent disablement. The issue was whether the illness was legally attributable to an injury received in the execution of duty under regulation A11.

1. The claim for judicial review succeeded. Dr Cooling’s decision was quashed, and the matter was to be reconsidered by another medical practitioner if Mr French pursued the application.

2. Under regulation A11, an injury is treated as received in the execution of duty where it is received while the officer is on duty. Regulation A13 requires the injury to have caused or substantially contributed to the disablement. Causation is approached in the common-sense manner expected of a doctor, but the statutory connection with duty must still be established.

3. R (Stunt) v Mallett [2001] ICR 989 established the material distinction between illness caused by stresses suffered through being at work and illness caused by disciplinary proceedings arising merely from the officer’s status as a constable. The latter does not fall within regulation A11. The fact that an officer continues working while an investigation proceeds does not itself bring the illness within the Regulations. An officer suspended from duty cannot be regarded as being on duty.

4. Mr French was not on duty during the relevant periods. Attempts to attend work or the lifting of suspension did not establish that he was performing police duties. The alleged lack of welfare support and management during suspension, and the circumstances surrounding the disciplinary process, might be relevant to civil proceedings, but could not satisfy regulation A11 for the purpose of an injury award. Even assuming that the June to September 2001 period could be treated as duty, it could not properly be isolated from the non-qualifying causes and treated as a substantial cause of the disablement.

5. The Authority was awarded its costs against Mr French, limited to costs incurred after acknowledgment of service and subject to detailed assessment if not agreed. No costs order was made against Dr Cooling.