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Gillies (AP) (Appellant) v. Secretary of State for Work and Pensions (Respondent) (Scotland) [2006]

Summary

The House of Lords has upheld a Scottish Court of Session decision that sees no bias in examining doctors sitting on tribunals.

The original commissioner's decision

A tribunal of commissioners decision,  CSDLA/1019/99, considered the potential bias of panel doctors who also prepare reports as examining medical practitioners (EMPs). It held that:

"placing ourselves in the position of the objective bystander, we consider that for one of these same doctors to be involved in assessing such reports prepared by other such doctors and then adjudicating in conflicts of evidence between such reports and other evidence causes reasonable apprehension of at least a subconscious bias. Accordingly, and whatever our own judicial view, we think it would be reasonable for an informed member of the public to think that justice may not be done in such circumstances."

It was held also that an "objective bystander" would not distinguish between types of disability and so might think it unjust if a doctor who sat on DLA appeals also prepared personal capability assessment reports and vice versa.

The Scottish Court of Session decision

The Court of Session in Scotland in The Secretary Of State For Work And Pensions against a decision of a Tribunal of Social Security Commissioners of 15 June 2001, communicated to the Appellant on or about 18 June 2001 and James Gillies rejected the commissioner's argument stating, in paragraph 38:

"Having considered the factual circumstances we are of the view that the fact that Dr. A. carried out examinations and provided reports for the Benefits Agency as an EMP would not be sufficient to raise in the mind of the reasonable and well-informed observer an apprehension as to her impartiality as a member of a disability appeal tribunal. The mere fact that the tribunal would require to consider and assess reports by other doctors who acted as EMPs would not be such as to raise such an apprehension."

In rejecting the judgment of the commissioners they emphasised the professionalism and independence of EMPs.

"That being so, one returns to the proposition that the association of Dr. A. with other EMPs would be sufficient to give rise in the mind of the reasonable and well-informed observer to an apprehension of bias. Such an observer would surely be blessed with the knowledge that Dr. A and the other EMPs were independent expert advisers in carrying out the work of examining and reporting to the Benefits Agency. If so, why should they not be regarded as independent of each other when it came to the assessment of, and adjudication between, competing medical opinions before the tribunal? There was considerable force in the submission made by the Dean of Faculty that there is a danger that, if Dr. A. should be regarded as disqualified in the present type of case, the same type of objection could be based simply on the membership of a professional body."

Following this judgement an appeal was made to the House of Lords.

The House of Lords decision

The House of Lords decided that the main issue (paragraph 17) was..

"whether the fair-minded and informed observer would conclude, having considered the facts, that there was a real possibility that Dr Armstrong would not evaluate reports by other doctors who acted as EMPs objectively and impartially against the other evidence."

Citing Johnson v Johnson (2000) 201 CLR 488, 509, para 53, this fair minded observer is assumed to be someone who..

"is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. It is to be assumed too that he is able to distinguish between what is relevant and what is irrelevant, and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant."

In paragraph 18 it was stressed that the panel member, Dr Armstrong, was not seen as a Benefits Agency doctor or as someone aligned with the Benefits Agency. She was an independent expert adviser.

"A fair-minded observer who had considered the facts properly would appreciate that professional detachment and the ability to exercise her own independent judgment on medical issues lay at the heart of her relationship with the Agency. He would also appreciate that she was just as capable of exercising those qualities when sitting as the medical member of a disability appeal tribunal. So there is no basis for a finding that there was a reasonable apprehension of bias on the ground that Dr Armstrong had a predisposition to favour the interests of the Benefits Agency. Nor, it must be emphasised, is there any suggestion that she did or said anything in the course of her work which might be thought to cast doubt on her impartiality or her integrity."

The question then was whether she was...

"...likely to be unconsciously biased when she was examining the medical evidence because of a predisposition to prefer the EMP report as against any contrary evidence due simply to her current involvement in providing reports as an EMP."

The answer to this question lay in the consideration of the respective roles of panel member and EMP and the professionalism required when carrying out both.

"20. The weakness of the argument that this was a real possibility is exposed as soon as the task that Dr Armstrong was performing as an EMP is compared with the task which she was performing on the tribunal. In each of these two roles she was being called upon to exercise an independent professional judgment, drawing upon her medical knowledge and her experience. The fair-minded observer would understand that there is a crucial difference between approaching the issues which the tribunal had to decide with a predisposition in favour of the views of the EMP, and drawing upon her medical knowledge and experience when testing those views against the other evidence. He would appreciate, looking at the matter objectively, that her knowledge and experience could cut both ways as she would be just as well placed to spot weaknesses in these reports as to spot their strengths. He would have no reason to think, in the absence of any other facts indicating the contrary, that she would not apply her medical knowledge and experience in just the same impartial way when she was sitting as a tribunal member as she would when she was acting as an EMP."

The Law Lords decided that far from a fair-minded and informed observer perceiving bias he or she might appreciate the advantage of a panel member having served as an EMP. Citing, in paragraph 21, n R (PD) v West Midlands and North West Mental Health Review Tribunal [2004] EWCA Civ 311 where ..

"the Court of Appeal held that the medical member of the review tribunal to which the appellant had applied for his discharge from detention under section 3 of the Mental Health Act 1983 who was a consultant psychiatrist was not disqualified from considering the appellant’s case because he was employed by the Mersey Care National Health Service Trust. Lord Phillips of Worth Matravers MR, delivering the judgment of the court, said in para 33:

“We consider that [the reasonable and informed] observer would expect a consultant psychiatrist to apply the same concerns for the welfare of a patient, whether that patient was the consultant’s own, or a patient whose liberty depended upon the objective clinical judgment of the consultant in the context of a tribunal hearing.”

It was held that the same reasoning applied in this case.

"The observer would appreciate that Dr Armstrong’s experience of working as an EMP would be likely to be of benefit to her, and through her to the other tribunal members, when she was evaluating the EMP report. The exercise of her independent judgment, after all, was the function that she was expected to perform as the tribunal’s medical member. Her experience in the preparation of these reports was an asset which was available, through her, for the other tribunal members to draw upon when they were considering the whole of the evidence."

Accordingly the appeal against the Court of Session decision failed.

More information

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