PURSUING A QUEST FOR OPEN GOVERNMENT
Dr P Grahame Woolf

September 2002

KEY WORDS:  Suspensions; Appeal Systems; Ministerial Decisions; Natural Justice, Due Process and Rules of Evidence; Transparency and Openness.

follow up to QUEST FOR FAIR PROCESS & NATURAL JUSTICE (January 2001)

Media reports daily demonstrate the fruits of unremitting persistence, to or beyond the grave, in tackling judicial injustices, and that there is wide public interest in the more spectacular and newsworthy examples of success against the odds. 

Reading these regularly, and following significant legal rulings, has prompted a follow-up report about my efforts, assisted by the Society of Clinical Psychiatrists, in connection with my own experiences of suspensions and dismissal, which lay outside the more usual province of the Society's Suspensions Group.  That had been established to research the increasing number of medical suspensions, and has been an important source of support for NHS doctors unfairly deprived of the opportunity to pursue their profession and livelihood. 

Many appeal systems which do exist are flawed, but the distinctive feature of suspensions and dismissal from the MHRT in the 1990s was that victims of perceived injustice had no recourse to any formal remedy whatsoever. 

Things do gradually change, however.  Recently, whilst I was drafting this paper, The Independent reported the formation by the Criminal Cases Review Committee of a new working party to explore the legion possibilities of miscarriages of justice 'where, with very little corroboration, one person's view has been taken against another' (John Wagstaff).  Next day I was spurred on by all the news media featuring the demise of the hallowed practise by Prison Governors of  'sitting as Judge and Jury', and punishing inmates for alleged disciplinary offences by extending their periods of incarceration.  That breached human rights and became subject to claims for compensation from some of the 900 inmates due for imminent release from custody as a consequence of the European ruling. 

Several interlocking provisions, which apply currently and retrospectively, have conspired, together with institutional inertia, to thwart my own protracted Quest , which dates back to 1994.  During the latter years of my active service as a Medical Member of the Mental Health Review Tribunal its Regional Chairman was a law unto himself, as have been Prison Governors in respect of disciplinary matters until now.  Publication was the only resource available to share concern about perceived injustice within the MHRT.

In 1998 the Lord Chancellor, through his officers, intervened to terminate my appointment.  Representations on my behalf, made with the assistance of specialist lawyers, were brushed aside without addressing the reasons advanced why that unusually belated and seemingly perverse decision should be reconsidered.  I was advised that Ministerial Decisions are unappeallable (except by the costly process of Judicial Review).  In my case, so advised the lawyers, whilst that had good grounds to succeed, there could be no guarantee, and in the absence of Legal Aid entitlement the process carried heavy financial risks.  All that was left was to request consideration informally, and to publish the shared concerns which were highlighted by my experience (q.v. references below). 

In early 1999 the Society of Clinical Psychiatrists had, in taking up my case, expressed dismay 'that doctors appointed to Tribunals could be effectively dismissed and lose their livelihoods upon the say so of a lawyer/regional chairman who may be a judge but is not their employer, that seemingly in breach of the doctor's human rights - - at worst it would enable any regional chairman to get rid of any tribunal member for whatever reason without being accountable and so fill the panel with his place men.  The doctor's professional reputation has been destroyed and his livelihood as a part-time member gone, all at the whim of that judge.  This seems hardly right and cannot be good for justice - -'.  The Society sought liaison with those revising the unsatisfactory NHS disciplinary system upon which their energies had been concentrated.  

That and a subsequent letter remained unacknowledged.  A third (April 2002) stressed that the circumstances were disquieting 'because Tribunals - - operate with a degree of justice and transparency, almost, it could be said, as their raison d`etre - - (and) the prima facie case has clearly placed Dr Woolf on the moral highground - - it seems only fair and courteous - - that his request for sight of written reasons be met in the interest of what legal colleagues might describe as natural justice, due process and rules of evidence.'

Their representations, and my own, were met with equally perfunctory dismissal of all the arguments and requests, the Lord Chancellor writing that there was 'nothing further that I can usefully comment on. Therefore, I see no justification for re-opening this matter'.  My experiences had however led to the instituting (for the first time) of a review procedure, which would address similar complaints in the future, but not retrospectively, and it was thought that I should be satisfied with that. 

Acknowledging the unsatisfactory nature of this dialogue, and that it had proved impossible for me to meet with any of the numerous representatives of the two government Departments who had dealt with the correspondence and were responsible for the Mental Health Review Tribunals, I left them to focus upon the immediate narrow issue of transparency and openness, and with a renewed request to know whether, in fact, the new complaints procedure had 'opened flood gates' and accordingly whether, with hindsight, it had proved necessary that its review terms were made non-retrospective? 

I have asked repeatedly to see any evidence upon which suspension twice, or dismissal, could have been reasonably based, and to know by what authority (or reasonable necessity) I had not been allowed to see the letter from the Regional Chairman to the Lord Chancellor which caused my eventual dismissal.  Nor, to date, have I been allowed sight of the file under my name passed on to the present MHRT Regional Chairman.  I have however been assured by the Department of Health recently that it contains 'no records pertaining to any complaints against you'!  My seemingly sensitive requests for disclosure of any written evidence which exists have now, years on, been referred to the Lord Chancellor's legal advisers.  I have reminded the Department that their letter-head carries the address www.open.gov.uk/lcd, and that "open government" should mean something!

Peter Grahame Woolf

References:

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. (1991) The role of the doctor in the Mental Health Review Tribunal  Bulletin of the Royal College of Psychiatrists, 15 407-409.

- - - - - (1999) Discipline in Public Service Justice of the Peace Vol.163, No.26

- - - - - (1999) Serving the MHRT 1966-98 Psychiatric Bulletin, 23, No. 4

- - - - - (1999) Inside the Mental Health Review Tribuna1 British Journal of Clinical and Social Psychiatry,Vol 1 No 1

- - - - - (2001) Quest For Fair Process & Natural Justice http://www.scpnet.com/quest.htm

Additional Reading 

Greenblatt, M. (1986) The use and abuse of power in the administration of systems Psychiatric Annals 16, 650-652.

House, R. J. (1991) The Distribution and Exercise of Power in Complex Organisations Leadership Quarterly 2(1), 23-58.

Howell, S. (1997) Editorial, MHRT Members' News Sheet 8, 1-2.

Richardson, G. & Machin, D. (2000)  Doctors on tribunals - A confusion of roles British Journal of Psychiatry, 176, 110-115.

Rooth, G. (2001) The future (or not) of the medical member Psychiatric Bulletin, 25, No. 1.

SCPnet: the Society of Clinical Psychiatrists