|
QUEST
FOR FAIR PROCESS & NATURAL JUSTICE (Experiences
of a tribunal doctor) P
Grahame Woolf FRCPsych Medical
Member of MHRT 1966-98 The
Mental Health Review Tribunal was initiated as a check upon
wrongful detention of psychiatric patients in hospitals, and
had until recently been generally believed to have worked fairly
well over the years. A
new situation arose when it was deemed in Europe to be unlawful
that the MHRT should not have the power to discharge restricted
patients under Home Office control. It
was resolved, to some misgivings of members and psychiatrists,
that Judges or QCs would preside over hearings in those sensitive
cases. Many
of those senior lawyers adapted well to their unaccustomed
role, for which training and experience had ill-prepared them. They
had also, when called upon additionally to hear non-restricted
appeals against detention for assessment, to cope with the
realities of daily hospital life, and frequent inadequate preparation
of evidence, before deciding the issues. In
latter years, the whole tribunal system was put under increasing
strain to just keep going week by week, the medical members
particularly stressed by the demands put upon them, and although
I am no longer directly involved, I understand that this remains
so. The
roles of doctors in the MHRT have been reviewed repeatedly
in the Royal College of Psychiatrists Psychiatric
Bulletin (The Journal of Psychiatric Practice) in papers
and correspondence, notably by the present writer, who has
also published about the difficulties for medical members in
the British Journal of
Clinical & Social Psychiatry, Hospital
Medicine and Justice
of the Peace. A
recent paper by Richardson & Machin in the British
Journal of Psychiatry urges radical reconsideration of
the precise role of the MHRT medical member, whose ambiguous
dual role is deemed by the authors 'to introduce real danger
that the patient's rights to fair process will suffer'. This
contention, and a proposal that medical members might be dispensed
with altogether, is rebutted by Rooth in Psychiatric
Bulletin January 2001. The
present short paper focuses, in contrast, upon the absence
until now of any rights to fair process or redress for medical
members of tribunals who may have found themselves subject
to unwarranted criticism and disciplinary action. The
Society of Clinical Psychiatrists has, through its Suspensions
Group, shone a bright searchlight upon the shortcomings of
NHS Trusts' complaints procedures, and through its unremitting
persistence (notably through the work of Dr Peter Tomlin) has
been instrumental in promoting change. For
medical members of the MHRT there was no formal complaints
procedure to avert injustice throughout my long term of service,
in contrast with the protection enjoyed by magistrates (also
under the aegis of the Lord Chancellor's department). Personal
experience During
my own prolonged traumatic experience as the subject of suspension
(twice), followed by dismissal (after more than 30 years previously
unblemished and well appreciated service) I have been grateful
for two avenues to publicise the problems, the MHRT Members'
Journal (of which I was co-founder) and the British Journal
of Clinical and Social Psychiatry. Elsewhere,
it has proved difficult to make headway, either at a personal
level or in promulgating the iniquities of a system which exists
to safeguard patients, but fails to protect its own members. The
traumatic circumstances of my own suspensions have been reported
elsewhere. As with suspended health service doctors, I have experienced
the usual ostracism by all but a very few former friends and
colleagues. The
assumption of "no smoke without fire" is not easily
overcome, however energetically a case be made. I
am in this paper drawing attention to a familiar experience,
the difficulty in enlisting effective help to redress wrongs,
and the avoidance of face to face meetings with those empowered
to do so. The
fact that the Mental Health Review Tribunal is run jointly
by the Department of Health and the Lord Chancellor's Department
provides ample scope for confusion and buck-passing. Many
enquiries through the years remained unacknowledged. The
GMC explained that it has no jurisdiction, nor likely influence,
over the administration of the MHRT, so its President (who
had been Guest of Honour to the Society of Clinical Psychiatrists)
considered it would not be proper to intervene. The
Council on Tribunals deemed the plight of tribunal members
to be none of their concern. The
Royal College of Psychiatrists decided that a support system
for doctors providing services related to mental health law
was desirable, but outside their remit - a matter for the BMA. Only
with persuasion did they send a copy of my representations
to them to the BMA, for information. That
correspondence was pursued with the BMA for over 18 months
before, to their credit, a lunch-time face-to-face meeting
was eventually achieved between the Chairman of the BMA Psychiatry
Sub-Committee and myself, together with the Chairman of the
SCP Suspensions Group. The
position was fully ventilated and appreciated, but in the event
the BMA's policy constraints precluded any possibility of positive
action. Representatives
of the national broadsheets and the medical press showed initial
interest, which waned and evaporated after abortive correspondence. Despite
the most thorough and lengthy written representations (prepared
with assistance by a barrister specialist in the field), and
repeated requests thereafter, knowledge of details of what
was alleged against me, or the source of any allegations, has
still been denied. There
has been no form of hearing of any possible case against me,
and neither an opportunity to meet with any of the succession
of responsible Heads of the MHRT Secretariat at the Department
of Health, nor even with any of the 10 and more officials of
the Lord Chancellor's Department who have handled the papers
- losing them sometimes on the way. The
present Regional Chairman of the MHRT has been one of many
who had, in kindness, urged me to drop the whole thing, it
being 'time to call an end to it'. She
has declined to meet and denied access to the relevant file
about me, which she holds, maintaining that it is privileged
and that its contents may not be disclosed - apparently so
as to protect her predecessor. There
have been numerous promises of 'substantive replies', at first
'within three weeks'. They
never came. In April 1999 there was an apology for delay due to 'pressure
of other work and staff shortages' in the Lord Chancellor's
department! In
July, a further apology, with the explanation that 'the fact
that a number of different officials had moved on only exacerbated
the delay'. I
was promised then again 'a substantive reply as soon as possible';
I still await it (as does my MP). A
Member of Parliament, recommended as having special relevant
interest, explained that he could not meet me because of House
of Commons protocol, so my own MP took the matter up and has
posted a succession of enquiries and reminders to the Lord
Chancellor over a period of several years, with long delays
before receipt of formal responses which do not address the
key issues. He
was belatedly informed that two formal letters from the Society
of Clinical Psychiatrists never reached the Lord Chancellor's
office, and he confirmed later that two recent letters from
me, addressed to him at the House of Commons, also never reached
him! I should
accept, he explained, that thousands of letters are sent to
the Palace of Westminster every day, and that some of them
are bound to go missing. (On
the way through this long-running, six years saga, very many
communications have allegedly not arrived or gone missing.) He
has been reluctant, because 'we are both busy men', to take
up my suggestion to meet by appointment outside the local 'advice
surgery' to discuss personally the complex issues and possible
ways forward, and he has intimated that not all interventions
on behalf of constituents by Members of Parliament can be expected
to succeed. It
was urged as long ago as 1994 that a proper complaints procedure
was required to protect MHRT doctors. On
account of my unremitting persistence, a review was finally
initiated in 1999, but the Society of Clinical Psychiatrists
did not have an opportunity to consider the proposals at the
consultation stage. The
new arrangements for the MHRT (only) which came into action
late last year should be carefully scrutinised by psychiatrists
who may contemplate becoming medical members. Despite
some questionable features, they have introduced improved safeguards
against unaccountable and secretive disciplinary action, and
include one dramatic provision, given my circumstances which,
it has been acknowledged, drove forward the review which was
eventually completed last year - future dismissals will only
be authorised by the Lord Chief Justice! There
is however no provision for retrospective review of previous
dismissals from the Mental Health Review Tribunals effected
by the Lord Chancellor, even though the numbers of similarly
aggrieved former members likely to seek such a course must
be miniscule. To
my best knowledge, the important lacuna in civil libertarian
terms revealed in this research remains unaddressed for the
other Tribunals under the auspices of the Lord Chancellor's
Department, upon which doctors serve as Medical Members. Some
of the papers listed below may provide helpful background
information about the realities of this very onerous, but
always less than well-remunerated, medico-legal job. I
learn now that revised financial arrangements for medical
members under present consideration give further cause for
concern, and that indeed the complete removal of medical
members from a new style process is being seriously contemplated;
but those must be matters for the active medical members
and responsible psychiatrists of the (real) new Millennium
to debate.
The paper was updated in September 2002
References 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. 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
10 No 1. |