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follow
up QUEST FOR FAIR PROCESS & NATURAL JUSTICEDr P
Grahame Woolf
August 2002 KEY
WORDS: Appeal
Systems; Ministerial Decisions; Natural Justice, Due
Process and Rules of Evidence; Transparency
and Openness. PURSUING A QUEST FOR OPEN
GOVERNMENT 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 has prompted a follow-up report about my efforts,
and those of the
Society of Clinical Psychiatrists, in connection with my own
experience, which lies 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
doctors unfairly deprived of the opportunity to pursue their
profession and livelihood in the NHS. 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
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, all the news media featured 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 is now 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 period 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, they
said, 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 mine, were met with similarly 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 again 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 file under my name held by
the MHRT, ending by reminding them that their website is www.open.gov.uk/lcd and
that "open government" must mean something? 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. |