An exploration of disciplinary
arrangements in several public service settings has revealed
surprising anomalies. Most professionals operating in the
public sector enjoy the protection of elaborate formalised
procedures for dealing with complaints and allegations made
against them. Some others, however, lack adequate protection
and may find themselves extremely vulnerable. The Magistrates'
Courts offer sophisticated complaints procedures to protect
members of the Bench which deserve close consideration by
those who are reviewing other current arrangements.
An extreme case is the Mental
Health Review Tribunal in England and Wales. This has a complex
administrative structure, being managed jointly by the Lord
Chancellor’s Department and independent branches of
the Department of Health and the Welsh Office. Most MHRT
hearings are, of their essence, forums for disputation between
detaining authorities and patients, who have been deemed
mentally disturbed and deprived of their civil liberty. The
atmosphere may be highly charged so that complaints about
the conduct of hearings, and disagreement with decisions,
arise inevitably from time to time. These are, however, usually
resolved informally and easily.
The writer served as a medical
member of the Mental Health Review Tribunal between 1966
and 1998. His investigations and experience have demonstrated
the extent to which members serve that organisation outside
a democratic framework, rendering themselves vulnerable to
abuse of power, exemplified by disciplinary measures imposed
without access to appeal or natural justice (Woolf, 1999).
Over the years the MHRT has
become more autocratic. Its members have no real voice in
the organisation and no representation in consideration of
the terms and conditions of service. Renewal of membership
is subject to secret, confidential recommendation, or veto,
by individual regional chairmen and tribunal clerks. The
standard letters of appointment and re-appointment from the
Lord Chancellor's office are chilling in their wording, and
have upset many members. There is no security and members
are advised that their appointments may be terminated at
any time without reason stated, and decisions of the Lord
Chancellor are not subject to appeal. An unacceptable degree
of regional autonomy has sometimes resulted in the arbitrary
exercise of overt and covert power over members, in cavalier
disregard of their own civil liberties.
Tribunal members have occasionally
suffered from actions by those in authority which have flown
in the face of the basic tenets of natural justice. There
may have been no revelation of the source and substance of
a complaint; no informal contact prior to suspension or de
facto dismissal to alert the member to the existence of a
complaint; no disclosure of opinions expressed or recorded
by way of monitoring; no certainty that undisclosed peripheral
considerations had not been taken into account unbeknown
to the suspended member; no subsequent properly conducted
hearing with open evidence and representation; no invitation
to make further representations; no provision for an appeal
to an independent panel; no right to redress or provision
for compensation in respect of any unsubstantiated complaint.
Members have been "invited to retire", prevented
from sitting without overt dismissal until termination of
appointment by non-renewal upon the due date, and have suffered
actual dismissal without any recourse to challenge or appeal
(other than by unaffordable judicial review).
The MHRT has developed towards
becoming an increasingly autocratic organisation. Although
a Presidential system has long been advocated, it remains
regionalised with resultant local variability. Its regional
chairmen, appointed from amongst the legal members, have
divided loyalties which have become difficult to reconcile.
New emphasis upon disciplinary responsibilities and monitoring
has tended to undermine the mutual confidence within the
tribunal fraternity of earlier years and compromised the
former reliance upon regional chairmen to support medical
members and to represent their interests, there being no
other avenues to approach. When presiding at tribunal hearings,
they accept (gracefully, most often) the principle of democratic
equality, whereby their preferred determination of an application
may be over-ruled by their medical and lay member colleagues
constituting a majority. But in organisational and disciplinary
matters, power and authority over those same members are
perceived as being virtually total, with their decisions
and actions not subject to any recognised form of appeal.
Tribunal members have become vulnerable to attacks from outside
or from within, to find themselves denied essential civil
rights.
Within any system which lacks
checks and balances, crises may be generated out of resolvable
problems. In today’s increasingly litigious climate,
complaining is prevalent and even encouraged. The archaism
of the MHRT system in its handling of complaints has been
recognised for at least five years, since when the institution
of a proper complaints procedure has been urged repeatedly,
one with suspension and dismissal reserved for only the most
serious misdemeanours.
It has proved hard
to obtain details of such complaints procedures as may exist
in many other Tribunals, or information about the extent
of problems leading to disciplinary action, which may also
vary locally. The diversity of their procedures reflects
their historical creation and development, and in some cases
geographical jurisdiction extends to Scotland and/or Northern
Ireland (Judicial Group, Lord Chancellor's Department, 1999).
Individual professionals canvassed have proved to be poorly
informed in respect of arrangements within their own jurisdictions.
One obstacle is the natural reticence of affected professionals,
and another, certainly as regards the Mental Health Review
Tribunal, is the lack of any consolidated central records
of suspensions held at the Department of Health or in the
Lord Chancellor’s office. It has however been established
that there are not in force any formal complaints procedures
designed to protect members of the Mental Health Review Tribunal
nor, so far as it has been possible to ascertain, in respect
of the other Tribunals for which the Lord Chancellor is directly
responsible.
The Appeals Tribunal (formerly
the Independent Tribunals Service) covers Social Security,
Medical, Disability and Child Support Appeal Tribunals, and
Vaccine Damage Tribunals. It deals with complaints against
tribunal members under President's Instruction No 18, which
states that complaints will be recorded and investigated
once put in writing. In most cases the complaint letter will
be sent to the member against whom complaint is made and
to colleagues sitting on the same tribunal. The regional
Chairman will evaluate the complaint and take appropriate
follow-up action, which might involve monitoring, advice
and support and written warning to prevent repetition of
the conduct complained of. If the question of serious misconduct
or incompetence arises, the file is referred to The President
and in turn, if appropriate, to the Lord Chancellor's Judicial
Appointments Division 5. When investigation is concluded
the complainant will be advised of the general outcome. The
document does not indicate the existence of any appeal procedure.
National Health Service Trusts
in England and Wales operate within Department of Health
and Welsh Office guidance as regards complaints procedures.
The actual operation of those procedures, however, has given
rise to enormous dissatisfaction, especially in respect of
the prevalent "knee jerk" suspending of doctors
in response to a variety of complaints, many of them unrelated
to patient care (Jacobs, H and Tomlin, P., 1999). Of some
2000 complaints about doctors which reached the GMC, only
0.03% were found to be serious enough for a hearing, and
a miniscule proportion, less than 0.01% of the suspended
doctors, had to be ordered to cease practising. The triviality
of alleged misdoing was often mind boggling. A high proportion
of complaints transpire to stem from inter-professional rivalry
and malice. Continuing blatant and widespread abuse of power
by NHS Trusts, in cavalier disregard of official NHS guidelines,
has been publicised in important parliamentary debates (Knight,
1999) which have highlighted how rules and procedures may
prove inadequate as safeguards, unless administered in a
spirit of fairness, and with complete independence and openness..
The Scottish Office Department
of Health (1999) has recently taken the initiative of issuing
an important report Suspensions - a new perspective, accompanied
by practice directions to employers, who are urged always
to consider suitable alternatives before resorting to suspension,
and belated radical revision is now under way in England
and Wales also.
Magistrates enjoy a more
favourable system, which reads as being fair and comprehensive.
The Lord Chancellor's Directions for Advisory Committees
on Justices of the Peace (1998) state that any complaint
about conduct at bench level which brings into question the
possible exercise of the Lord Chancellor's powers must be
referred to the Advisory Committee without delay.
Complaints of a relatively
minor nature may be dealt with locally, and in that event
the Lord Chancellor specifies that unsupported allegations
are not sufficient. The magistrate must be informed in writing
of matters of concern or allegations, and given a fair opportunity
to respond. Full notes of meetings must be made available
to the magistrate for comments on their accuracy and substance.
Even if no action ensues, a proper record must be maintained
for possible future need. Care must be taken not to intimidate
a magistrate, nor to appear to usurp the sole discretion
vested in the Lord Chancellor, who alone has the power to
direct that a magistrate shall not sit.
In cases referred to the
Advisory Committee, the magistrate should be invited to attend
an interview within a month of a request for comments or
explanation in writing. Every care must be taken to observe
the principles of natural justice so that the proceedings
are perceived by the magistrate as being fair and such as
to withstand judicial scrutiny. An accompanying legal adviser
may observe the interview and advise the magistrate. The
panel will consider only matters about which the magistrate
has been informed and it must be made clear that only the
Lord Chancellor can discipline or remove a magistrate. It
should be ensured that the magistrate has all the papers;
no pressure should be put on the magistrate to resign and
it should be made clear that neither the interviewing panel
nor the Advisory Committee has the power to require a magistrate
to resign. Disputed facts should be isolated and the panel
should note its reasons for supporting a particular version,
these reasons not to be supported by any fact or supposition
which had not been put to the magistrate. The panel should
recognise that the Lord Chancellor will not remove a magistrate
unless there is no acceptable alternative. Recommendations
by the Advisory Committee that the Lord Chancellor should
exercise any of his powers, and the reasons for such, should
be forwarded to the magistrate as soon as practicable, with
14 days to respond with representations to the Lord Chancellor,
after receipt of which the Secretary of Commissions Office
will write to invite further representations, observations
or clarification of contentious issues, after which the Lord
Chancellor's decision will be conveyed as soon as possible.
* * * * *
It remains hard to comprehend
why Magistrates' Courts and Tribunals, both ultimately responsible
to the Lord Chancellor, have continued to operate until now
under such dramatically different procedures for dealing
with complaints against those who serve them.
Murphy's Law tells us that "anything
which can go wrong, will go wrong" and it is well known
that without checks and balances individual personal characteristics
of power holders are certain to come into play occasionally
in the exercise of power within any complex organisation
(Greenblatt, 1986 and House, 1991).
The MHRT, which has survived
to date on a basis of co-operation, trust and common sense,
should, without further delay, take some basic steps towards
democratic accountability and institute formal measures to
protect and ensure the "civil liberties" of its
own members.
It is paradoxical that whereas
all tribunals dispense justice with transparency, the MHRT
lacks fair and effective safeguards for its own members.
When simple mediation fails, due process and rules of evidence
should be applied in the interest of natural justice, as
they are for Justices of the Peace.
REFERENCES
Greenblatt, M. (1986) The
use and abuse of power in the administration of systems
Psychiatric Annals,16, 650-652.
House, Robert J. (1991) The
Distribution and Exercise of Power in Complex
Organisations Leadership
Quarterly, 2(1), 23-58.
Jacobs, H and Tomlin, P.
(1999) Suspensions: a blot on the NHS landscape;2
SCP Study Group.
Judicial Group, Lord Chancellor's
Department (1999) Judicial Appointments.
Knight, Dame J. (1999) Debate
on Hospital Disciplinary Procedures
Lords Hansard 13 January.
Lord Chancellor's Directions
for Advisory Committees on Justices of the Peace July 1998
Scottish Office Dept. of
Health (1999) Suspensions - a new perspective
Report of Working Group on
Suspension
Society of Clinical Psychiatrists
Study Group (1988) A Code of Practice for
Suspending Hospital Doctors
British Journal of Clinical &
Social Psychiatry 6.94.
Woolf, P. G. - (1999) Serving
the MHRT 1966-98 Psychiatric Bulletin, 23, No 4.
- - - - - - - - - (1999)
Inside the Mental Health Review Tribunal British Journal
of
Clinical & Social Psychiatry,
Vol. 10 No 1.
