Gillies (AP) (Appellant) v. Secretary of State for Work and Pensions (Respondent) (Scotland)
19. The question then is whether there were grounds for thinking that Dr Armstrong 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. Doctors holding current engagements to provide these reports can be assumed, no doubt, to have a special interest and experience in this kind of work. The group of doctors to which they belong can also be distinguished from NHS doctors generally, as was pointed out by the tribunal of commissioners. But why should these facts be said to lead to the conclusion that there was a real possibility that she was biased in favour of the views expressed by the EMP?
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.
21. In R (PD) v West Midlands and North West Mental Health Review Tribunal  EWCA Civ 311 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:
I would apply the same reasoning to 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.
22. One of the strengths of the tribunal system as it has been developed in this country is the breadth of relevant experience that can be built into it by the use of lay members to sit with members who are legally qualified. In Cooke v Secretary of State for Social Security  3 All ER 279, para 15 Hale LJ (as she then was) paid tribute to the fact that specialist tribunals, chaired as they usually are by a lawyer, have an appropriate balance of experience and expertise amongst their members. The panel system that was provided for by section 42 of the Social Security Administration Act 1992 for the appointment of persons to act as members of disability appeal tribunals, and is now to be found in section 6 of the Social Security Act 1998 for use under the new unified system, gives effect to that principle. There were to be two panels for each area, one composed of medical practitioners and the other composed of persons experienced in dealing with the needs of disabled persons in a professional or voluntary capacity or because they themselves are disabled. It would greatly undermine the practical utility of this system if panel members were to be disabled from sitting on cases because their experience was likely to give them an advantage when examining the evidence over those who did not have the same background.
23. The fact is that the bringing of experience to bear when examining evidence and reaching a decision upon it has nothing whatever to do with bias. The purpose of disqualification on the ground of apparent bias is to preserve the administration of justice from anything that might detract from the basic rules of fairness. One guiding principle is to be found in the concept of independence. No one can be a judge in his own cause. That principle is, of course, applied much more widely today than a literal interpretation of these words might suggest. It is not confined to cases where the judge is a party to the proceedings. It applies also to cases where he has even the slightest personal or pecuniary interest in their outcome. There is no suggestion that that principle was breached in this case. The other principle is to be found in the concept of impartiality - that justice must not only be done: it must be seen to be done. This too has at its heart the need to maintain public confidence in the integrity of the administration of justice. Impartiality consists in the absence of a predisposition to favour the interests of either side in the dispute. Therein lies the integrity of the adjudication system. But its integrity is not compromised by the use of specialist knowledge or experience when the judge or tribunal member is examining the evidence.
24. Support for this approach is found in Nwabueze v General Medical Council  1 WLR 1760 where it was contended that there was a real possibility that a lay member of the Professional Conduct Committee was biased because she lived in or close to the area from which a medical centre where the doctor had worked when he was a trainee drew its patients and her undisclosed period of office as chairman of a statutory body concerned with nursing and midwifery in Wales. It was also suggested that she showed bias in the manner of her questioning of the doctor when questions were being put to him at the end of his evidence by the committee. These allegations were rejected. Reviewing the evidence about her professional background, the Board said at p 1771:
25. In Meerabux v Attorney-General of Belize  UKPC 12;  2 WLR 1307 one of the questions was whether the chairman of an advisory council to which the complaint against the judge had been referred by the Governor was disqualified on the ground of apparent bias because of his membership of the Belize Bar Association. It was held that mere membership of the Bar Association did not disqualify him on this ground. But the Board also said at p 1318, para 25, that the facts which the observer would take into account included the nature and composition of the tribunal and the qualifications that a person must possess to be appointed chairman [to its membership]. So too in this case the fair-minded observer would take into account the nature and composition of the tribunal and the qualifications that Dr Armstrong had to have to be appointed as its medical member. This is the context in which her involvement as an EMP had to be viewed. It does not lead to the conclusion that she was likely to be biased.
26. I do not overlook the fact that concern has been expressed about the composition of medical health tribunals constituted under the Mental Health (Care and Treatment) (Scotland) Act 2003 on the ground that community psychiatric nurses who have been appointed to the panel of general members are drawn from the same profession as the psychiatrists appointed to the panel of medical members: Chris Turner, Seen to be Fair? Journal of the Law Society of Scotland, vol 50, no 11, November 2005, p 24. But whatever force there may be in this criticism, as to which I express no opinion, it cannot be based on the allegation that there is a real possibility that those chosen for membership of these panels are biased simply because they are community psychiatric nurses or psychiatrists. They are chosen for membership of these panels because they have the experience that is thought to be relevant to the issues that these tribunals are called upon to decide.
27. In my opinion the idea that Dr Armstrong was likely to be predisposed in favour of reports by EMP practitioners simply because she had a special interest in and experience of the preparation of these reports has no objective basis in the evidence. The test for her disqualification on the ground of apparent bias has not been made out.
28. For these reasons, and for those given by my noble and learned friend Lord Rodger of Earlsferry, I would affirm the interlocutor of the First Division of the Court of Session and dismiss the appeal.
LORD RODGER OF EARLSFERRY
29. I have had the advantage of considering the speech of my noble and learned friend, Lord Hope of Craighead, in draft. I agree with it and, for the reasons he gives, I too would dismiss the appeal. I add only one point.
30. The appellant's objection to Dr Armstrong was that she was serving as a panel member while continuing, as an independent expert adviser, to provide reports for the Benefits Agency under the subcontract arrangements described by Lord Hope. The appellant did not suggest that there would be any objection to Dr Armstrong sitting on a tribunal if she had previously provided reports but was no longer doing so - at least if sufficient time had been allowed to elapse before she sat. In my view the currency of her involvement should not be regarded as a decisive factor.
31. Dr Armstrong was originally appointed to the panel of medical practitioners under section 42(3) of the Social Security Administration Act 1992. Under section 42(4) the other panel was to comprise persons who were experienced in dealing with the needs of disabled persons (a) in a professional or voluntary capacity or (b) because they were themselves disabled. That legislation has been superseded by section 6 of the Social Security Act 1998 but the position remains the same since, in any appeal relating to disability living allowance, the panel must include a person who meets the same criteria as were prescribed by section 42(4): regulations 1 and 36(6) of, and para 5 of Schedule 3 to, the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999 No 991).
32. Clearly, the class of people with experience in dealing with the needs of disabled persons in a professional or voluntary capacity could include people who were no longer actively involved in that kind of work. But people who qualify as members of the panel because they are themselves disabled will be disabled whenever they sit on a tribunal. So, on the appellant's approach, there would be an argument for saying that, because they were themselves disabled, they should be disqualified because they would be likely to be partial to the disabled person. In particular, consciously or subconsciously, they might be more receptive to the disabled person's account of his or her condition. It is important to emphasise, however, that Parliament has not endorsed that line of thinking. On the contrary, it takes the view that disabled people who have been selected to serve as members of a tribunal can act impartially and may bring valuable experience to its work - even though they are not legally qualified and have not taken a judicial oath. That will usually be the position in practice as well as in theory. If, exceptionally, it should turn out that the judgment of a particular tribunal member was so affected by his or her disability that the member could not display the necessary impartiality in reaching decisions, this would be a good ground for objecting to that member.
33. Similarly, the fact that Dr Armstrong was currently providing reports for the Benefits Agency, as an independent expert adviser, would not, of itself, be a reason why the fair-minded and informed observer would conclude that there was a real possibility that the tribunal was biased. The position might have been different if there had been any reason to suppose that the members of the Nestor pool of doctors were a close-knit group sharing an esprit de corps. But there was nothing to suggest that and nothing to suggest that Dr Armstrong was actually predisposed, whether consciously or subconsciously, to accept the reports of her colleagues. In short, there was nothing in Dr Armstrong's outside activities or in the way that she conducted herself to show that she was unable to fulfil the duty of every tribunal member, which is to reach an independent judgment. In these circumstances, the appropriate conclusion is that the tribunal which included Dr Armstrong was properly constituted.
LORD WALKER OF GESTINGTHORPE
34. I have had the great advantage of reading in draft the opinions of my noble and learned friends Lord Hope of Craighead, Lord Rodger of Earlsferry and Baroness Hale of Richmond. I am in full agreement with them and for the reasons which they give I too would dismiss this appeal.
BARONESS HALE OF RICHMOND
35. My noble and learned friends, Lord Hope of Craighead and Lord Rodger of Earlsferry, have already said all that needs to be said in support of dismissing this appeal. I add a few words only because, as a former member of the Council on Tribunals, I take a particular interest in the tribunal system.
36. Tribunals were once regarded with the deepest of suspicion but they are now an essential part of our justice system. They are mostly there to secure justice between citizen and state in a wide variety of contexts, the most numerically important of which is entitlement to the financial benefits provided by the welfare state. Since the Report of the Donoughmore Committee on Ministers' Powers (Cmd 4060, 1932), it has been recognised that tribunals can have important advantages over courts of law. These are 'cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject': see the Report of the Franks Committee on Administrative Tribunals and Enquiries (Cmnd 218, 1957, para 38). The Report of Sir Andrew Leggatt's Review of Tribunals, Tribunals for Users, One System, One Service (2001, paras 1.11 to 1.13) suggests three tests of whether tribunals rather than courts should decide cases. The first is participation: that users should be able to prepare and present their own cases effectively. The third is the need for expertise in the area of law involved: users should not have to explain to the tribunal what the law is. The second is the need for special expertise in the subject matter of the dispute:
Expertise on the tribunal not only improves decision-making and reduces the need for outside expertise; it also thereby increases the accessibility and user-friendliness of the proceedings.
37. Ever since the Franks Report, the watchwords by which any tribunal system has been judged are its 'openness, fairness and impartiality':
This is echoed in the Council on Tribunals' Framework of Standards for Tribunals (November 2002, para 1(a)):
38. Impartiality is not the same as independence, although the two are closely linked. Impartiality is the tribunal's approach to deciding the cases before it. Independence is the structural or institutional framework which secures this impartiality, not only in the minds of the tribunal members but also in the perception of the public. The public are now represented by the 'fair-minded and informed observer'. The approach to be adopted was explained by Lord Phillips of Worth Matravers MR in In re Medicaments and Related Classes of Goods (No 2)  1 WLR 700, para 85, at pp 726-727, and adopted (with the deletion of the words 'or a real danger') by my noble and learned friend Lord Hope of Craighead in Porter v Magill  UKHL 67,  2 AC 357, para 103, p 494:
39. The 'fair minded and informed observer' is probably not an insider (ie another member of the same tribunal system). Otherwise she would run the risk of having the insider's blindness to the faults that outsiders can so easily see. But she is informed. She knows the relevant facts. And she is fair minded. She is, as Kirby J put it in Johnson v Johnson (2000) 200 CLR 488, 'neither complacent nor unduly sensitive or suspicious'.
40. The relevant facts of tribunal life include the great advantage, both to its users and to its decision-making, of being able to call upon the people with the greatest expertise in the subject matter of the claim. Given the wide variety of disabilities which come before the Disability Appeal Tribunals, it would not be practicable to have a specialist in the particular disability involved in the particular case. The greatest expertise in assessing the claimant's condition and applying the statutory criteria to it is likely to be held by those doctors who are experienced in making these assessments at the point of claim. To have such expertise available on the tribunal can only be an advantage to it.
41. Another relevant fact of tribunal life is that the benefits system exists to pay benefits to those who are entitled to them. As counsel put it to us in Hinchy v Secretary of State for Work and Pensions  UKHL 16,  1 WLR 967, the system is there to ensure, so far as it can, that everyone receives what they are entitled to, neither more nor less. The role of the examining medical practitioner (EMP) is to provide an independent assessment of whether the claimant meets the criteria for the benefit in question. She has no more interest in denying the claimant a benefit to which he is entitled than she has in granting him one to which he is not. No doubt, just as some judges are more lenient or more generous than others, some EMPs are kinder to claimants than others, but that stems from the individual's character and personality, not from the nature of the role.
42. The Tribunal of Commissioners rejected the argument that Dr Armstrong was by virtue of her role as EMP a "Benefits Agency" doctor. She had very detailed obligations to work objectively to prescribed standards. Hence they concluded (para 79) that EMPs were "not simply 'Benefits Agency doctors', but rather independent expert advisers, at that stage". Their reason for holding that the objective bystander would have a reasonable perception of bias (para 80) was "the concern that a doctor in Dr A's position, because of the substantial current involvement in the same role as the reporting doctor, may start with an inclination to accept that evidence rather than objectively viewing the competing version".
43. But another relevant fact of tribunal life is that professional people are often called upon to adjudicate upon disputes concerning exactly the same sort of decisions that they regularly make in their own professional practice. In disciplinary tribunals they may be called upon to judge whether a fellow practitioner has met the required standards of professional practice and conduct. Doubts are sometimes expressed about whether professional solidarity gets in the way of impartial adjudication in such cases, but the professional members of such tribunals have not so far been held to be institutionally biased. In any event, this is not a disciplinary situation. The Disability Appeal Tribunal is not holding the EMP to account. This is simply one doctor reviewing at appellate level in the same sort of decision that she is used to making on the ground.
44. The nearest parallel in the tribunal system is in Mental Health Review Tribunals. The medical member of the tribunal is a specialist in mental health, usually a consultant psychiatrist approved under section 12(2) of the Mental Health Act 1983 to make recommendations and reports for the purpose of compulsory admission to hospital. On the tribunal she is called upon to participate in a review of the clinical judgment of another consultant psychiatrist approved under section 12(2) who is in charge of the patient's treatment and further detention in hospital. Consultant psychiatrists are also a comparatively small professional group, who might also be suspected of professional solidarity. Yet it has not been suggested that, for this reason alone, one psychiatrist is likely to be biased in favour of the views of another psychiatrist. The whole system depends upon there being a psychiatrist on the tribunal who is likely to know what the other psychiatrist is talking about and be able to make an informed but dispassionate judgment upon it. The fair minded and informed observer would see no reason why the capacity of an EMP to do the same should be any different.
45. In R (PD) v West Midlands and North West Mental Health Review Tribunal  EWCA Civ 311, the medical member of the tribunal was, at the time the case came before the tribunal, employed by the same NHS Trust which ran the hospital (in Liverpool) at which the patient was detained, but at a different hospital (in Southport). But there was nothing to suggest that the Trust had any particular interest in the outcome of the case, that it was in a position to benefit or disadvantage the doctor if it disapproved of the decision, or that he had worked with the staff who were responsible for the patient at the hospital where he was detained. The judge dismissed the application. The Court of Appeal was left wondering why the case had ever been brought. I must have seen something in it at some time, because I had given permission to appeal. But I entirely accept the reasoning of the Court of Appeal and, given that the Tribunal of Commissioners had rejected the 'Benefits Agency doctor' argument, consider that it applies equally strongly to this case. The Agency has no more interest than the Trust in the outcome of any individual case. It is not realistically in a position to influence the doctor's decisions one way or the other. And there is no more reason in this case to suspect Dr Armstrong of professional solidarity with the views of the EMP in this case than there was of the psychiatrist in that case. It might be different, of course, if she had had prior knowledge of the facts of the case. There is a distinction between knowledge of the particular facts and knowledge of the subject matter: see R (Al-Hasan) v Secretary of State for the Home Department  UKHL 13,  1 WLR 688.
46. It is also a fact of tribunal life that they are presided over by lawyers whose role is not only to conduct the hearing in a fair and user-friendly fashion, to understand the relevant law, and to explain it to their colleagues. It is also to assist those colleagues to address the relevant issues in a reasonable and fair-minded way and then write the reasons for their decision. It is now the responsibility of the President of the Appeals Service to arrange training, not only for tribunal chairs, but also for tribunal members. We have no evidence about the training that may or may not have been given to members of Disability Appeal Tribunals before this case. But if the detailed obligation of EMPs to work objectively to prescribed standards was enough, in the view of the Commissioners, to put the doctors in a position of professional independence at that stage, I find it difficult to understand what there could possibly be about the facts of tribunal life which would lead to a lessening of that professional independence and objectivity at the tribunal stage.