The views expressed in the paper represent the personal views of its author and not the Society.

 

Whistleblower to Vexatious Correspondent

 

ABUSE OF POWER and PUNISHMENTS WITHOUT CRIMES
Exploring a Dismissal from Public Service

First published by the Society of Clinical Psychiatrists 2003, updated 2008

P Grahame Woolf FRCPsych
Medical Member of Mental Health Review Tribunal 1966-98
Editor Journal of Social and Clinical Psychiatry & SCPNET 2004-2006
(Editor MusicalPointers.co.uk)

" I would now advise anyone not to bring up a problem in a hospital because they will be disciplined.."
(radiologist sacked after reporting his discovery of thousands of unreported X-rays in a teaching hospital)
Hospital Doctor, 13 December 2007

Abstract

This paper relates to two Mental Health Review Tribunal hearings for applicants detained in hospital for assessment in 1994 and 1997.

On both occasions, the writer was the medical member of the panel. After the first, the social worker reported within her department that she had felt unduly pressed by questioning about her discharge plans for the patient. She had not made any representations to the Tribunal President and no one else at the hearing reported anything untoward either at the time or later. Responding to a subsequent complaint made on her behalf, I apologised that she had felt discomfited by my questions about her client's social circumstances and potential homelessness. He later died in police custody and the coroner's critical conclusions (publicised in an investigative TV documentary) highlighted his vulnerability, which was consistent with the questioning having been both pertinent and necessary.

The second patient mentioned in passing during his preliminary examination that he thought he recognised me as having examined him some years before. He raised this again during the hearing, having not done so with his lawyer beforehand. A consequent request for an adjournment was granted nem con, although in like circumstances many Tribunal Presidents would have ruled that the hearing should proceed regardless. The applicant was not disadvantaged by a one week delay and he was not discharged at the adjourned hearing. The Regional Chairman, Judge Henry Palmer, subsequently took me to task for having omitted to pass on the information of possible prior contact with the patient before the hearing began.

In both instances I was summarily suspended by letter pending investigation of the complaints – bolts from the blue! The first suspension was lifted partially following a meeting at the Department of Health, but the second was converted by the then Lord Chancellor to formal dismissal after prolonged correspondence. That action, initiated by Judge Palmer, was endorsed and made permanent by the Lord Chancellor, the dismissal effectively terminating the career of an experienced senior consultant specialist in medico-legal psychiatry.

The Lord Chancellor's decision was taken without my having had any meetings with members of his Department (now the Department of Constitutional Affairs) nor with representatives of the Department of Health, which had joint responsibility for the Mental Health Review Tribunal.

The only brief meeting I was afforded eventually was with an official of the Lord Chancellor's Department when I was accompanied by a consultant forensic psychologist colleague. We reiterated our concerns but discussion of the dismissal decision was explicitly disallowed [q.v. - - the decision of the Lord Chancellor is not subject to appeal (June 1988) - - ].

No reasons had ever been given other beyond the Lord Chancellor writing "any likelihood that public confidence in [the holder's] impartialiaty will be impaired' [27 June 1998]. He discounted the explanation that the relevant Tribunal Rules, which members of MHRT panels held constantly in mind, relate only to recent treatment; a contravention would have applied only had I treated the patient, and "recently" too, instead of just assessing him.

Logistics make it a far from uncommon occurrence for a patient to be seen by the same MHRT panel member on more than one occasion. When it emerges that a patient had been seen before by one of the panel, it is more usual for the hearing to continue rather than be adjourned. It is rare for a medical member to be questioned about such a routine occurrence, let alone for it to attract official attention and lead to a suspension; I know of no similar case.

As part of the enquiry process, requests for disclosure of evidence were always systematically denied. This was eventually justified by the Lord Chancellor's Department under a relatively unfamiliar Code of Conduct, invoked only after it had been conceded that the power to withhold the documents was actually discretionary, not mandatory as previously had been claimed in error, with an apology that I had been misled by them ! "Neither the Data Protection Act nor the Code of Practice on Access to Government Information prohibits the release of information" (August 2003).

The Department went on to cite a "non-statutory Code of Practice on Access to Government Information in respect of individuals holding judicial appointments", concluding with a denial of the request for information: "I therefore under exemption 8 of the Code refuse your request" (Aug 2003). That "therefore" makes it abundantly clear that withholding information remained an imperative in my case.

Despite energetic support over many years from the Society of Clinical Psychiatrists and my MP, an appeal was never able to progress. Legal advice had been that a judicial review would have a good chance of succeeding, but that route was precluded by costs considerations [Any costs you incur are at your own risk. (10 2 2004, PLH to PGW)].

I am left wondering why such an extreme course of action was taken, and in such a secretive manner. However it should be mentioned that during the frustrated correspondence I had seen fit to lodge a formal complaint against the Regional Chairman. That, to my knowledge, was never dealt with and Judge Palmer left office some short while later. Might that attempt at "whistleblowing" have been a factor in the Decision to make my suspension permanent? It is suggested that this experience reflects a classic case of abuse of power.

There has to be a better way of checking apparent unfairness and misunderstandings, and similarly to resolve problems that are amenable to quick and obvious solutions. In the current climate of supposedly greater openness by government, this paper is presented as an example of why this is so desirable and indeed necessary. What else could I have done to get to the truth?

Key Words: Whistle-blowing, abuse of power, secrecy, evasiveness, blind alleys, brick walls...

Sometimes, you have to lose a job to find a voice
(William Rees-Mogg, The Times 10 November 2003)

INTRODUCTION

This paper has several interlinked purposes, its driving force a belief that in an advanced democratic society injustice ought to be capable of easy resolution.

It was embarked upon during enforced inactivity with a broken leg, and as an experiment in writing an in-depth study which, by its nature, could be published only on the internet. It draws upon the WWW's unique hyperlink resource for context.

The original paper grew over several years into a substantial piece of investigative journalism, on an esoteric topic of very limited public interest, revealing unexpected anomalies in the workings of one major government department (the Lord Chancellor's) which responded punitively to a complaint. It required persistent probing into the workings of interlinked government organisations from which information was sought.

It explores the realities of exaggerated claims that Britain has moved towards a climate of "openness" in public life, covering a period before and since the coming into operation of the Freedom of Information Act, and demonstrates by example that the Act's promise is tending to prove something of a chimera.

It is unapologetically long and tedious, tracing the evasions and delays which prevent the emergence of embarrassing truths.

COMPLAINING ABOUT A JUDGE

Nobody complains lightly about a Judge, nor to one of Her Majesty's senior Ministers.

During the 1990s "whistleblowing" had purportedly became respectable, so that school and workplace bullying became anathema, if not eliminated. [q.v. my final POSTSCRIPT below and the SCP chairman's Whilst we were sleeping]

My complaint to the then Lord Chancellor about one of his Mental Health Review Tribunal Regional Chairmen sought to test what happens in practice.

The outcome was dismissal of the complaint and of the complainer (long delayed and arguably perfunctory in its reasoning). That fostered an enduring sense of grievance and injustice.

[Only very belatedly have I learned unequivocally the reality of the futility of complaining about a Judge to his superior, the Lord Chancellor; "The lord chancellor has a statutory obligation to defend the judiciary written into his job description - -" The Guardian 2006 ]

Research for other publications (listed below) discovered the secret ways in which government acts, and how heavily the dice can be loaded against a wronged individual in byways of public life which do not attract media attention.

My daring to complain rebounded. My suspensions and eventual dismissal from medical membership of the Mental Health Review Tribunal had consequent profound effects upon a professional career, income and personal life.

Ministerial decisions, inevitably including occasional perverse ones, are unappealable except through complex judicial review, not lightly to be embarked upon and frequently unaffordable by an individual.

Received wisdom is that whistleblowing is risky and necessarily to be forgone by those still on the career ladder, whose individual stories remain private and unshared except in confidential secrecy, such as the SCP provides in its support group for suspended doctors. The majority of its suspendee members are eventually fully exonerated.

It is therefore only possible to share this experience of testing so-called “open government” because the writer is long retired from NHS hospital employment and not dependent for career progress upon approval and patronage.

Advice received in my case has ranged from "forget it, and get on with your life" to "it is inconceivable that the Lord Chancellor would not support one of his judges" and, in respect of a (fifth) review (recommended ten years after the first of two suspensions and complaint about it), a warning that it was " vanishingly improbable " that yet another review recommended to the present Lord Chancellor by an official in his Department would make any difference...

Only after a decade-long saga of correspondence, with shorter paper publications intervening on some aspects of the problems, was a face-to-face meeting finally convened with someone in the long chains of power holders and their representatives, after years of trying. But frustratingly this proved to be ring-fenced and not the anticipated opportunity for mutual exchanges towards concensus and righting wrongs.

HISTORY

During the 1990s "whistleblowing" became respectable, and school and workplace bullying has now become anathema, though far from eliminated. [

Two commonplace and unremarkable incidents at Mental Health Review Tribunal hearings in 1994 and 1997, which have been written up elsewhere, and would more usually have passed without special notice, led to a complaint by a senior consultant psychiatrist (the writer) about how a Regional Chairman of the MHRT had over-responded to two matters brought to his attention, distorting and blowing them up out of all proportion.

Complaining rebounded, unexpectedly and long afterwards, resulting with dismissal by the then Lord Chancellor from medical membership of the Tribunal.

" - - On 22 September 1997 you wrote to me complaining about your suspension from the Mental Health Review Tribunal - - because you had sectioned the patient two years previously
[I had actually not done so, which is material ! q.v. discussions of the MHRT Rules below]
- - it would not be appropriate for your appointment to continue - - if the Regional Chairman did suspend your appointment in a manner which amounted to termination, this would have been incorrect, as I alone have the power to terminate an appointment.
However, in the circumstances, this would have made no difference - - ”
Lord Chancellor Irvine to PGW, June 1998)

 

Secret Evidence and Unappealable Decisions

This paper illustrates by graphic example how British "open government" is still paralysed by its reliance upon the enshrined doctrine that ministerial decisions, however flawed, are unappealable once they have been taken [Google lists 222 English pages for "ministerial decisions unappealable"] There has not, it seems, been any significant relaxation since the Freedom of Information Act came into force of the at the beginning of 2005.

That tradition engenders a world of unreality in which admission of human error and apology becomes impossible.

The two incidents themselves, and especially the withholding of any evidence that might exist to explain the over-reactions, have been reported fully in the MHRT Members' NewsSheet and Journal and elsewhere. All the points quoted above in key passages from the dismissal letter of June 1998 had been vigorously rebutted in legally assisted correspondence with the Lord Chancellor's Department (LCD), and traversed in a series of publications about the MHRT.

A procession of loyal officials, with their hands tied behind their backs, has tried to bolster up a patently flawed Decision (drafted apparently by a civil servant, NRO, and signed by the then Lord Chancellor, Lord Irvine) by evading persistent questioning from the consultant psychiatrist victim, his MP and the Society of Clinical Psychiatrists, year after year.

Admitted illegality in the original actions was brushed aside loftily as irrelevant, and the last of 13 representatives of the two Lords Chancellor's departments has justified the refusal of meetings throughout by characterising the persistent representations as 'a crusade'. He vented his irritation that his hands are tied by threatening to dub the writer a 'vexatious correspondent'.

Daring to complain about a retired Judge had rebounded after a long wait. Suspension and eventual dismissal from medical membership of the Mental Health Review Tribunal had consequent profound adverse effects upon a professional career and personal life.

This paper, too lengthy for paper publication, seeks to comprehend an unusual sequence of events, and to document in depth processes of governmental decision making, notably high levels of secrecy and protective defensiveness which ought to have become unthinkable in an open democracy around the turn of the century. The following quote will be examined in depth.

“ - - the power to withhold the documents from you is discretionary
- - provisions of the Data Protection Act do not apply - -
I have considered whether the information should be released to you
under the non-statutory Code of Practice on Access to Government Information - -
I therefore refuse your request under exemption 8 of the Code - - “
(Department for Constitutional Affairs, August 2003)

" - - If ever you want to hold power accountable, you need access to the documents - - "
(Judge Albie Sachs; Guardian Review, August 2006)

In particular, it challenges the basis of the Government's refusal to disclose crucial documentation, “evidence” which, had it been accepted unquestioningly at face value, might have caused, and conceivably could even have justified, unique and disproportionate punishments for what could only be properly characterized as questionable or (at the highest) very minor misdemeanours.

It is only possible to share this experience of testing so-called “open government” because the writer is virtually retired and so no longer dependent for career progress upon approval and patronage. Necessary circumspection has ensured that the full stories of the far more numerous and news-worthy suspensions of NHS consultants in mid-career remain hidden. The majority of them are eventually fully exonerated.


To leaven a heavy read, and hoping to help excuse its length, the narrative is punctuated with newspaper quotes* which may broaden the context and help to hold readers' attention?

*Unique perhaps in medical journalism, a like method has successfully been adopted to get unsavory realities across to a wider public in political theatre, e.g. What I Heard About Iraq at Edinburgh Festival 2006, using only fully verifiable facts and quotes, to demonstrate the secrets behind the lies about Iraq as a theatrical collage. It "makes you question just about everything you've heard and read. - - It's like watching someone trying to dig themselves out of a deep hole and only succeeding in covering themselves with sand - - in a world where it's increasingly difficult to know what to believe, you can't just take words at face value but must learn to read between the lines ". (Guardian August 2006)

“I felt isolated and bereft - - as though all the years I have put into my job were for nothing"
"- - one of the best teachers in the country has - - effectively been hounded
- - forced out and forced away.”
(Head-teacher cleared of slapping 6-year old: The Times, 12 November 2003)

" - - challenging those in power at length and in depth - - is a prerequisite in a democratic society - - "
John Humphrys, The Times 22 April 2004

Abuse of power in large institutions and excessive government secrecy are underlying themes of the paper. For background orientation towards my argument, I turn usual practice on its head by listing first a few important references - their full texts are available on request:

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.

Woolf, P.G. (2003) Openness Denied – Excessive Government Secrecy?
Justice of the Peace , 167/38, 711

(Full reading list at end of this paper; several of my own publications about the MHRT can be read on the Society of Clinical Psychiatrists website - (Points of View: Tribunals)

- - - - - - - - - - - - - - - - - -

This exploration has been long in gestation and revision - please forgive some repetition - its development prompted by thinking about a number of long delayed eventual reversals of injustices and of criminal convictions (some of them achieved posthumously, and only after years of persistent campaigning).

During a period of enforced confinement with a broken leg, during which the bulk of this paper was compiled, I reviewed my own experience in the dramatic context of the ongoing Hutton Inquiry, during which

“ - - the inner workings of the British government were laid bare as seldom before”
THE GUARDIAN September 6, 2003

The inquiry secretary had said:

"Lord Hutton wanted every document entered as evidence and every word put on the website, which, after six years dealing with freedom of information [at the Home Office], I thoroughly approve of. We wanted to be as open as possible "
THE TIMES September 9 2003 ).

As against that praiseworthy attitude, complaints about undue and excessive secrecy in government departments hit the media with numbing frequency, almost daily, especially since the ongoing furore about the War against Iraq and the rapid constitutional changes being fostered hastily at home.

A parliamentary select committee said yesterday that the “culture of secrecy” was embedded in the Home Office

- - everything “must be kept under wraps”.
The Times, 7 November 2003

Duplicity, evasions - but no answers - - When the powerful feel threatened,
there is little they will not do to protect their power - -
Peter Kilfoyle The Guardian, 27 February 2004

I shall provide extensive extracts from correspondence with the former Lord Chancellor's Department (LCD) - now the Department of Constitutional Affairs (DCA) - some of the later exchanges by email.

The ‘caretaker' Lord Chancellor (who had a lot placed on his plate for a likely brief tenure) disappointingly ignored pleas by the writer's MP (then a fellow government minister!) to make Dr Woolf 'privy to any complaints about him' and to review the case in its entirety; instead in January 2004 he merely endorsed the decision taken by his predecessor six years before, apparently without having been given by the civil servants an opportunity to genuinely review a dubious initial decision, and did so again in 2005 following re-referral by one of his own civil servants...

Internal evidence indicates strongly that neither of the two Lord Chancellors was in a position to exercise his trained senior QC mind upon the actual submissions, and the background to them, before penning his signature to responses drafted by civil servants unfamiliar with the practicalities of psychiatric work.

Nor in the voluminous correspondence is there any indication that any of the three Departments involved (Department of Health, Lord Chancellor's Department and Department of Constitutional Affairs) had sought advice from an independent consultant psychiatrist, ideally one with experience in urban city centres, who could have provided perspective on the difficult realities of the onerous task of making preliminary, community based, examinations of prospective patients, to help decide whether they should be admitted under Section 2 of the Mental Health Act for fuller assessment in hospital.

These extracts from the voluminous correspondence which are appended after the body of this paper are but the tip of an iceberg, held in three thick lever-arch files and on computer. They are necessarily shortened, hopefully without distorting their essence – complete copies are available.

- - - - - - - - - - -

There is extensive documented corroboration and support for the position taken by the writer, with powerful specialist legal input, although many relevant organisations have preferred to distance themselves from active involvement - the Society of Clinical Psychiatrists the most notable exception.

Little by little it was learned that the GMC has no jurisdiction, nor likely influence, over the administration of the MHRT (its President declined to intervene); the Council on Tribunals astonishingly 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.

Public Concern at Work - the whistleblowing charity - explained that the issues do not fall within their area of expertise, and drew my attention to The Campaign for Freedom of Information which campaigns against unnecessary official secrecy....

Representatives of both the Department of Health and of the Lord Chancellor's Department had over many years invoked the Data Protection Act to justify their stance, the LCD going to the length of buttressing non-disclosure by obtaining fresh legal opinion which, in turn, they refused to disclose, and which subsequently was established as flawed; the LCD was eventually forced to concede that that Act had never applied in my case!

Most victims of this inequity between government and the governed would have wilted under this heavy weight of assumed and presumed authority. Only persistent challenge established that it was ill-founded, and recent scandals have prompted a review of the Data Protection Act.

After nearly a decade of strong representations and persistent enquiries, the LCD & DCA, to their credit, finally confirmed that the correspondence with their Departments is “not privileged” from publication, which makes what follows perhaps unique?

That admission contrasts starkly with their zealous maintenance even afterwards of their own discretionary right not to disclose essential documents and information, held onto with a pertinacity which may surprise some readers.

“The Data Protection Act 1998 is truly a rogues' charter. Byzantine and incomprehensible, even to judges and specialist lawyers, it can consequently be prayed in aid, however preposterously,
to abet mischief and to excuse failure.”

GODWIN BUSUTTIL (Barrister) The Times: December 24, 2003

"A law intended to protect privacy is to be reviewed - - John Reid, the Health Secretary, said a fresh look at the Data Protection Act was needed - - the Act should not be used to excuse failures on the part of - - public agencies. Lord Filkin, minister at the Department of Constitutional Affairs, said that he would consult the Information Commissioner on whether "more guidance" should be given about the law's implementation."
The Independent 24 December 2003

The Truth about Lying: Collins dictionary gives two definitions:
1) to speak untruthfully with the intent to mislead or deceive;
and 2) to convey a false impression or practice deception.
- - for most lesser mortals, withholding relevant information is just as much a lie as is giving false information: a lie by omission.

( The Guardian, Letters 26 July 2004 )
 

UNNECESSARY OFFICIAL SECRECY?

Once it had been established that the essential information sought was not covered by any mandatory regulations, the new Department of Consitutional Affairs saw fit nonetheless to continue to invoke 'discretionary powers' to endorse and maintain their non-disclosure stance!

Readers may be mystified that the former LCD, and now the DCA, have both felt the need to continue to exercise their discretion negatively, by still refusing to make available any evidence at all upon which draconian action had been based, and by maintaining unwavering refusal to review the suspensions and dismissal under the long overdue complaints procedure which had been brought into existence as a direct sequel and consequence of my own experience.

Why the powerful government departments involved have felt the need to strenuously resist legitimate questioning and maintain a climate of secrecy remains a mystery?

It undermines the climate of respectability supposedly achieved for ‘whistle-blower' victims of abuses of power.

SETTING THE SCENE

Two suspensions from the MHRT and, long afterwards, dismissal signed by the then Lord Chancellor, followed a lengthy period of service (1966 -1998) during which I had been co-founder of the MHRT Members' News Letter (latterly Members' Journal), an initiative welcomed by the Department of Health and a publication which went from strength to strength.

Having a wide experience in many relevant capacities, I was called upon to lecture on the roles of doctors who are variously required to produce tribunal reports on their patients, prepare independent reports for patients' legal representatives, and to sit on the panels as medical members of the MHRT. I also published on that theme for the Royal College of Psychiatrists.

Prior to his untimely death I had enjoyed the confidence of the universally respected solicitor Regional Chairman, the late Mr James Cooke. I accompanied him to the House of Lords when changes to the Mental Health Act 1983 were being debated. The co-founder of the MHRT Members' Newsletter and myself sat on the tribunal panel with Mr Cooke at his last appearance as President, during which his terminal illness sadly became manifest. He had been a friend to his legal, medical and lay Members and, with best endeavour, represented their interests to those in high places.

Things changed dramatically in 1994 under the next Regional Chairman, a retired Crown Court Judge [HP] whose relevant prior experience had been mainly (perhaps exclusively) presiding over special “strengthened” tribunals for “restricted” psychiatric patients, those who had been detained in hospital for treatment, generally without limit of time, and subject to Home Office control, because of the seriousness of their offences. Their tribunal applications were invariably prepared thoroughly, with comprehensive paper work as for a Court, and were heard before panels presided over by Judges and QCs.

The hearings for “S 2” assessment cases were, necessarily, often very different from those for the restricted “S 41” patients with which he had been familiar.

That new Regional Chairman [HP] was a “new broom” who, when interviewing  prospective legal presidents, advised them not to be over-influenced by their medical colleagues, the psychiatrists. His own practice at those hearings he chaired was, unusually, to take most of the questioning himself. He actively ‘monitored' tribunal hearings in the Region to an unprecedented extent, seemingly unaware of the effect of his frequent appearances, which were frankly oppressive.

Acting as the President of hurriedly convened Section 2 reviews of patients detained for assessment for up to 28 days, the new Chairman confessed himself out of his depth in this unfamiliar arena at first, confronted with often incomplete preparation for those hearings, reports frequently scanty (sometimes none) and doctors and social workers appearing before him who might not know the applicants. He was accordingly ill-equipped to evaluate complaints arising after such hearings.

Two of those complaints, neither made overt during the hearings, and the second never attributed openly to its source, led to his suspending me twice, that believed to have been an unique occurrence. In contrast with his predecessor, he did not seem to embrace a 'duty of care' towards his members as their representative to officialdom, to balance the disciplinary role in which he saw himself placed.

Previously, earlier in 1994, I had urged the need for a proper Complaints Procedure, as was common elsewhere. The Members Newsletter Board deemed it prudent to explore this obvious need behind the scenes, rather than by publishing my full proposal.

Long after the 1997 suspension, about which I lodged a detailed 40 paragraph formal complaint (assisted by a specialist barrister who became also an MHRT legal president), and not until after Judge Palmer's appointment as Regional Chairman had come to an end was I unexpectedly dismissed by the Lord Chancellor, as a person “unsuitable to continue to act as a medical member in any Region of the MHRT”, that stemming from Judge Palmer's much earlier recommendation (I having declined to "resign" as he had hoped).

Chris Jackson, 56 - - a magistrate from Rugeley, Staffordshire - - said:
“I believe it will have more impact if the Lord Chancellor has to sack me.”

THE TIMES SEPTEMBER 15 2003

Dr Dizaei, PhD in race relations, said after the collapse of his trial:
“ - - I find it astonishing and extraordinary that taxpayers' hard-earned funds could be abused in this way.”

THE TIMES SEPTEMBER 16 2003

“No one should be bullied out of a job”
BBC TV 17 Sept 2003

None of the three disciplinary actions, two suspensions and the ultimate dismissal, made sense to medical and other colleagues who learned about them, as is very fully documented elsewhere and was made known to all concerned.

This paper is an attempt to throw light upon how those suspensions could have come about and how the totally unexpected dismissal, long afterwards, was maintained against all the evidence.

Eventually, at my instigation, but too late to help me, my efforts to right the wrongs bore fruit in a new, and first, MHRT Complaints Procedure (May 2000) whose unexceptionable aims were summarised in its preamble:

The Mental Health Review Tribunal wishes to encourage
an atmosphere in which complaints are dealt with
in a constructive and helpful manner,
both for the complainant and the person complained against.

Members, Staff and Chairmen need to know that
sensitive management of complaints
will promote a climate of fairness
amongst the Tribunal membership
and those who have made complaints.

The full text of that Complaints Procedures can be accessed on the very new MHRT website (October 2004). See [PDF] MINISTRY OF JUSTICE - MHRT GUIDANCE – MAY 2007

None of its obviously worthy aims has pertained in my own correspondence with officials at the Tribunal, the Department of Health, and some other organizations approached.

RETROSPECTIVE AND NON-RETROSPECTIVE

The new arrangements were introduced with a “non-retrospective” caveat, which the LCD has never explained and indeed has cited in support of their refusal to re-examine my case?

That has a piquant obverse, turning my penny on its head; the proposal to ban Peers convicted of serious crime from the House of Lords, announced on the very day of Lord Geoffrey Archer's return to public life, is drafted to be retrospective in effect - a provision which has been widely attacked as possibly in breach of Human Rights.

Lord Strathclyde: “Of course it's vindictive - - What worries me very much is its retrospective nature, and legal experts are already saying it offends against the Human Rights Act.”

Letters to the Editor: - - to propose retrospective legislation - - to punish a man for his past crimes is a disgraceful abuse of executive power. - -
JOHN NOTT (Defence Secretary, 1981-83)

- Article 7 of the European Convention on Human Rights - - prohibits convictions for “any act or omission, which did not constitute a criminal offence . . when it was committed” and continues: “Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” It follows that the Government cannot strip Jeffrey Archer of his life peerage, or ban him from the House of Lords.
THE TIMES SEPTEMBER 2003

At least, that proposal before the Lords will be subjected to debate!

Without any comparable opportunity to challenge any of the four successive ‘executive decisions' - I was suspended (twice), excluded from the Members' Annual Meeting whilst still a medical member of the MHRT, and later punished and disgraced by dismissal from the MHRT (though not imprisoned for my alleged peccadilloes) - and imperfect though any analogy be, I find myself a sympathetic if strange bedfellow of the disgraced peer.

[Addendum 1 12 2004 ]: The origin of the crucial "non-retrospective" caveat has been very belatedly disclosed by MK, the Regional Chairman who succeded "HP" and fronted the drafting of the Complaints Procedure:

24 11 2004 PGW to MK Were you present at the meeting when the 'non-retrospective' clause was discussed?   Unfortunately the Society of Clinical Psychiaatrists' offer to scrutinise the proposals at draft stage was not taken up.
Can you remember how and why that clause was introduced , leading in turn to everyone's excuse not to meet me? 
26 11 2004 MK to PGW The Complaints Procedure was drafted by me and two others. We were all categoric that this was a move forward for the MHRT and was not to be retrospective - - only future complaints should fall within its remit.


AN ESOTERIC MEDICO-LEGAL BACKWATER

The Mental Health Review Tribunal is a specialised, esoteric medico-legal backwater which operates on the periphery of public awareness, albeit a bastion for civil liberties of some of the most vulnerable members of our society; its workings have never attracted media interest.

The numerous individual civil servants through whose hands my MHRT papers passed succeeded each other in rapid and bewildering succession - the LCD was latterly re-constituted in 2003 as the Department of Constitutional Affairs (DCA) headed by a new, transitional Lord Chancellor.

None of those officers, who wield such power behind the scene, has agreed to meet me, nor to welcome me for discussion with a representative of the Society of Clinical Psychiatrists. The 'economical', formulaic responses signed by the former Lord Chancellor and his successsor displayed a paucity of critical acumen. They compound a relentless, rigid unwillingness to review patent injustice and abuse of power, which had been the subject of carefully considered, formal complaint.

To avoid this paper becoming even more excessively lengthy, I shall illustrate my own experience chiefly from correspondence with the Lord Chancellor's Department (LCD). That correspondence, which has been confirmed by them to be ‘non-privileged', illustrates graphically the workings of Government around the turn of the Century.

There has been similar evasion and defensiveness in resisting legitimate enquiries to the MHRT administration and its personell, and to the Department of Health which oversees its activities. It has been a frustrating saga of attempts to make personal contact with people and organizations that might have been expected to provide necessary information in a spirit of openness and helpfulness, that conspicuous throughout by its absence.

CONFLICTS OF INTEREST

This complex area has been cited as a chief ‘reason' for my punishments.

It merits closer examination, especially in view of the attitudes and untrammeled practice of the Chairman concerned. Prior to his appointment, all members were aware of conflict of interest possibilities, and occasionally acted to disqualify themselves from a panel, e.g. doctors who had treated the applicant recently, as specified in the Tribunal Rules. Consultant psychiatrist experts in forensic practice are well accustomed (as are barristers) to accepting instructions variously from solicitors acting for plaintiffs and at other times from those acting for defendants and the prosecution; the importance of retaining independence, and reporting to the Court, is well understood (latterly, joint instructions of a single expert have become common)

The Regional Chairman took that consideration to an extreme in my case, and his doing so was the subject of vigorous correspondence in private and in public. It had become accepted practice that lawyers who regularly represented MHRT applicants for tribunal hearings should, when appointed as Legal Members of the MHRT, sit in other Regions, for the consideration of possible conflicts of interest. That Chairman had taken upon himself, it emerged, to dictate to the regular legal representatives of patient applicants in his Region that they were not to instruct ‘his' members to prepare independent reports for tribunals. (That was not discussed openly, and only came to light after referrals for tribunal reports had mysteriously ‘dried up'.)

REGIONAL CHAIRMEN'S ROLES AND RESPONSIBILITIES

Meriting deeper consideration are the inbuilt conflicts of interest appertaining to the Regional Chairmen themselves. These had, so I understand, not come to the fore elsewhere or previously; commonsense used to prevail.

Regional Chair appointments carried multiple roles and responsibilities. The chairmen were responsible for appointing for each hearing a panel of three members, a legal president, a medical member and a lay member. That task is normally delegated to office staff (there were rumblings sometimes about inequable allocation of bookings).

The Chairman would, from time to time, appoint himself as President of a tribunal, in that role becoming one of three equal decision makers.

The chairmen were also expected to ‘monitor' the performance of members and of hearings, and entitled to sit in upon the panels' private deliberations to reach Decisions. In earlier experience, that was done occasionally and with a light touch; it became notoriously different under the new Chairman in my Region [HP].

Lastly, the Chairman's role was crucial in recommending, or not, reappointment of tribunal members after a specified term of office.

Suffice it to say that such a rich brew of potential conflicts of interests carries a particular hazard in situations of personality clash, which are inescapable in complex organizations. The niceties of preliminary examinations by medical members, and the issue of a member's possible previous contact with an applicant (of which it was alleged I had fallen foul) pales by comparison with the risks of conflicts of interest that confront regional chairmen themselves! Maybe a Chairman with such strong and rigid views as [HP] ought to disqualify himself from presiding at hearings in his own Region?

In reflecting upon the thorny topic of conflicts of interests in the MHRT, a noteworthy legal opinion has been received from Anthony Bingham, a barrister active in the field.
He suggested that it may be:
- - unlawful to discipline an d punish tribunal members - - a tribunal, which decides people's civil rights, may not be independent and impartial if the tribunal can be subjected to punishment - - if - - a complaints system - - can lead to punishment, ridicule or contempt, decisions may be made to avoid complaints. - - - - the tribunal shall be “guaranteed free from outside pressure” ( Findlay v. UK ).
You are not so guaranteed if I can bring a complaint and put your reputation in jeopardy, or at least cause you a great deal of grief even if my complaint is not made out - - . what is the effect on a man's mind (the tribunal's mind) knowing that a complaint about (say) unfairness, tardiness, ineffectiveness or lack of competence can arise and thus give rise to loss of reputation (at least) and punishment?
If - - there is a mere possibility that the person may develop some self-interest/self-protection - - the tribunal is no longer impartil and the influence of the disciplinary proceedings is unlawful.

"TOO PERSONAL"

Before quoting the correspondence in detail I must indicate another reason why, for the record, this paper on the WWW is necessary.

A number of previous submissions for publication, some of them invited after an initial show of interest, failed to reach the press, or did so in an emasculated form, personal aspects of the problems having been editorially diluted or deleted.

Some “scientific” journals demanded wider surveys with statistics, which were not readily available. I had noted a change over several decades past in that single case studies – here, my own case - had become suspect, and were rejected under the more rigorous requirements of scientific validity.

Three of my single case studies were eventually published by the Society of Clinical Psychiatrists, which takes an independent stance, and is renowned for its unswerving support of wrongly suspended doctors, individually, and through persistent media exposure of the problem.

More than once has rejection of texts been explained as because the material was “too personal”. Legal sections of the broadsheet press expressed interest, but this lapsed, doubtless because the topic was considered too marginal for their readerships.

Only the internet offered scope for a full examination of the issues.

DEFENDING THE INDEFENSIBLE - AN IRREVERSIBLE MACHINE

Study of the correspondence appended to my discussion of the background may lead readers to wonder why the draconian punishments of suspension (effectively dismissal in the particular circumstances) were applied, endorsed by the LCD and relentlessly maintained against all reason?

[Mr Bush] should also drop the administration's " never apologise, never explain " approach to policy.
A blunt acknowledgement that it has made mistakes would help improve its standing.

Financial Times 13 September 2003

I was already over 70 when dismissed ignominiously, serving in discretionary ‘overtime' (because of the shortage of experienced medical members, extensions of appointment beyond the retiring age of 70 had become necessary to keep the system going). ‘Non-renewal', with the customary letter of thanks for long service, might have been more appropriate than dismissal, and would have saved the LCD the hassle of trying to defend the indefensible during the subsequent years, not to speak of a large expenditure of public money.

- - A health minister blames a suspended doctor's personal media campaign for the two-and-a-half-year delay - his supporters maintain he was targeted because he blew the whistle - the cost of the suspension
had reached over £500,000 - the disciplinary panel is not due to meet until January 2005.

Hospital Doctor 5 August 2004

One can hypothesise that experienced civil servants in the government departments (one rarely knows their level of seniority and relevant experience, if any) are blinkered and trapped by working in an institutionally rigid and inflexible environment, without easy access to relevant advice, in this instance from fellow consultant psychiatrists familiar with the actualities of domiciliary assessments and S2 tribunal hearings in city centres.

It may also be fairly said that the wordings of the Lord Chancellor's crucial endorsement of the ‘incorrect' de-facto dismissal by [HP], one of his Judges, and of his repeated reiterations that he stood by it, do not carry conviction that the drafts had been thought through thoroughly before being signed by an eminent QC elevated to one of the highest offices in the realm.

* * * * * * *

 

EXTRACTS FROM CORRESPONDENCE

Main personages:

DH (Department of Health)
Mary Kane (MK)
Zena Muth (ZM)
Margaret Burn (MB)
Henry Palmer (HP R/Ch)
Jeremy Cooper (JC)

LCD (LORD CHANCELLOR'S DEPARTMENT)
Helen Baker (HARB)
Nigel Osner (NRO)
Mary Burton (MB)
J Silvester (JS)
Geoff Hiden (GH)
Kathleen Turner (KT)
Jane Kennedy (JK)
Philip Hales (PH)
Lord Irvine of Lairg, Lord Chancellor

later DCA (Department of Constitutional Affairs)
Philip Hales (PLH)
Kerry Lynch (KL)
Jason Yaxley (JY)
Ray Sams (RS)
Janet Taitt (JT)
Lord Charles Falconer of Thoroton, Lord Chancellor

Legal Advice:
Lucy Scott-Moncrieff (LS-M)
Kris Gledhill (KG)
Anthony Bingham (AB)

1 July 1997 HP to PGW
- - let me know whether it is your intention to relinquish your appointment - - if your service has already been terminated by effluxion of time, there will be no need for me to write to the Lord Chancellor's Department - -

10 July 1997 PGW to HP
- - I have not relinquished my appointment neither have I "resigned" - - nor has my appointment been terminated by "effluxion of time".

11 11 97 PGW to KG ( LORD CHANCELLOR'S DEPARTMENT Selbourne House)
I hope to have your interim response to my submissions of 25 September shortly - - I am anxious to know whether the need which I have identified, to formulate a complaints procedure to protect MHRT members, has now been recognized - - so that experiences such as mine could not happen again?

16 3 98 HARB to PGW
I am sorry for some delay whilst two branches of this office have been dealing with your appointment and your complaint - - We are seeking comments - - so that the Lord Chancellor can give proper consideration to your complaint (of 25 Sept 1997)

26 3 98 PGW to CL, MHRT (c to HARB, LCD)
Request for papers for MHRT Members Annual Meeting Apr 1998
– “lest there be any misunderstanding, I have neither resigned nor have I been sacked by the Ld Ch”

3 April 1998 HARB (Judicial Appointments Division 2) to PGW
- - I can confirm that the letter of complaint dated 25 September 1997 has now been sent to the Judge for his comments - - The Lord Chancellor - - wishes to reply to you personally - - I sense your impatience at the slow rate with which this has progressed - - I head the branch responsible for complaints-handling, and will have carriage of the matter in future.

You have asked for a statement of 'allegations' against you. I do not have a document that might be described as a 'charge sheet' setting these out. - - I do have correspondence - - which indicate the reasons for his instruction that you should not sit as a member of the Mental Health Review Tribunals in the South Thames Region followed your failure to act upon an alleged conflict of interest at a tribunal hearing on 6 May 1997. - - Your reply of 25 May did not persuade him that you had either recognised or taken sufficient steps to avoid a potential conflict of interest. - - I have written to [Judge Palmer] to seek, on the Lord Chancellor's behalf, his reaction to your amended letter of 25 September, and to clarify his understanding of your position, and his powers as Regional Chairman.

I will write to you again - - to let you know what the next steps will be. - -

6th April 1998 PGW to HARB
- - I apologise for having pressed you so about this matter which has dragged on for nearly a year in all. - - I confirm that - - I wrote to (HP) July 1997 correcting his misapprehension, confirming that I had not "resigned" nor intended to do so, neither had my service been terminated by " effluxion of time" as he thought possible [which would have spared him the "necessity" to report me to the Lord Chancellor !]. - -

I have today received from (HP) - - " there seems little point in your attending my members' meeting ", (this in response to my request to the MHRT for the Agenda and discussion papers for the forthcoming meeting on 20th Apri1).

Thank you for confirming that there is no hidden " charge sheet " . I note also that your papers do not include statements from relevant individuals present at either of the contentious tribunal hearings. - - I look forward to having an opportunity to see and comment upon (HP's) reaction to my complaint in due course, and to study his clarification to you of his own understanding of my position and of his powers as Regional Chairman. - -

1 June 1998 PGW to ZM (Head of Mental Health Review Tribunal Secretariat, Dept of Health)
- - As you know, I decided that I would not be prepared to sit on a further MHT panel in S. Thames under the then Chairman [who had suspended me twice]- - no substantive complaints against me have emerged throughout a whole year - - Will you please arrange that I am restored to the rota - - I would hope to meet the new Chair in due course

4 June 1998 ZM to PGW
- - If the Lord Chancellor's Department is able to confirm that you remain a member of the MHRT then I see no reason why you should not continue sitting

12 June 1998 PGW to ZM
- - I confirm, once again, that I do remain a member of the MHRT and, indeed, that I am sitting in North Thames.

22 June ZM to PGW
- - since my letter of 4 June I have been advised that until the matter of disagreement between yourself and P remains under consideration by the Lord Chancellor we may not invite you to sit as a member of the Mental Health Review Tribunal in any region. (i.e. suspension extended to all regions!) I apologise for misleading you.

16th July 1998 PGW to NRO (LCD)
Re: Dismissal from the MHRT - - I thank you for indicating that the papers on my complaint of 25th September 1997 had already been passed over to Lord Irvine, so that you were unable to let me see and comment upon (HP's) letters, and such documents as he may have appended to support his justification for his actions in 1994 and 1997.

I acknowledge having now received on return from holiday the Lord Chancellor's Decision that I may not continue to sit in any Region.

If that Decision is subject to Appeal, would you please let me know the correct procedure?

22 July 1998 NRO to PGW
DISMISSAL FROM THE MHRT
The decision of the Lord Chancellor is not subject to appeal .

1 October 1998 JS (LCD) to PGW
This is just to acknowledge your letter of 24 September 1998 . A substantive reply will be forthcoming in due course.

12 October 1998 PGW to JS
Re: Suspensions and Dismissal from the MHRT

Thank you for letting me know that you have my complaint and enquiries in hand for a substantive reply in due course, following my protracted and frustrating, mainly one-sided correspondence with a multitude of your colleagues - - .

I did, of course, never receive any substantive reply to my complaints and proposals . Lord Irvine's letter eventually dealt with HP's letters of complaint about me (though not before the Judge himself had complained about the delay). I was never allowed to see the letters about myself, although I had warned repeatedly of possible inaccuracies and distortions in them. He endorsed (HP's) reasoning and actions retrospectively, and also refuted the legal basis of my submissions in a manner which has left me unconvinced.

However, in my lengthy response of 27th July I pointed your department back towards my belief that many central concerns had not been addressed . (RNO) had nothing to add.

I enclose now for easier reference a further copy of that response with outstanding, unaddressed key points highlighted - - I enclose also a discussion paper from 1994 with draft proposals for a more effective and safer way of organising communications and dealing with problems within the MHRT.

- - the Newsletter board (which included (another) regional chairman - - took the view collectively that progress on those lines would better be pursued at that time by negotiation "behind the scenes", rather than through publication. With hindsight, that appears to have been a mistake!

I hope you may find it of interest, and as supporting - - my serious concern for the well being of the MHRT and my "consistent and active contribution - - which had greatly enhanced Editorial Board discussions" (Howell, Members' News Sheet Editorial, Sept 1997).

I believe that I was quite the wrong member to have been dismissed by the Lord Chancellor (the first probably to suffer in this way in the South England Regions in recent years ?) and this is an opinion widely shared amongst the membership. - -

14 October 1998 JS to PGW
Your letter of 24 September, addressed to (Mr NRO) has been transferred to me for reply.

I can tell you that on occasions it is possible to judicially review the decisions of Ministers. - - no separate cumulative records have ever been kept of suspensions or dismissals in the Mental Health Review Tribunal. This applies equally to other Tribunals for which the Lord Chancellor is responsible. The relevant correspondence is of course retained on the file of the individual in question.

- - The Lord Chancellor has recently created new posts of Regional Chairman to the Mental Health Review Tribunal. Consideration of any formal grievance procedure will lie with those who now fill those posts, in consultation with the Department of Health and this Department as appropriate.

1st November 1998 PGW to JS
- - you will not need me to tell you that the costs of pursuing a Judicial Review are not affordable by a private individual with limited resources such as myself, and that legal aid is not available to right wrongs of such a nature as I have suffered. It ought not to need that sledge-hammer to crack this particular nut! I have not found any colleagues to agree with (the Judge's) actions, nor that your eventual endorsement of them was reasonable. With any sensible mechanism in place, it could not have gone so far, nor ended in that way.

- - you will recall that [HP] ignored your Department's invitation to retum his comments upon my representations, prior to the Lord Chancellor's determination of the matter in dispute.

I enclose for your interest a letter accepted by the Royal College of Psychiatrists, for publication - - . My own continued constructive interest in the MHRT is widely appreciated, despite my exclusion - - from active involvement - - and eventually by the Lord Chancellor for all Regions.

I have been invited to (another) Region's annual members' party next month, and last week I was invited by one of London 's teaching hospitals to lecture about the MHRT!

I would remind you that in my original complaint of 25 9 1997 (paragraphs 6 & 7) I had decided (contrary to advice) that I preferred to raise my concerns in a manner which would lead to constructive change, rather than in court where your Department might be tempted to go on the defensive ... I wonder whether the course which has in fact been taken in response to my complaint is not beginning to cause just a little regret, and maybe even some embarrassment, in Selbourne House?

I have of course had no substantive reply, despite several promises . Nor have I had any intimation that it is intended to institute formal measures which would render an experience such as mine improbable in the future. Are you able, and willing, to confirm whether my proposals for a formal complaints procedure will be put forward now for consideration by the four newly appointed and reappointed Regional Chairmen at their first meeting.

19 November 1998 JS to PGW
I am now able to respond substantively - - I apologise for the delay in doing so.

Your October communication included an annotated copy of your letter of the 25 September 1997 . I have shown this to [Mr NRO], who has nothing to add to his original correspondence. - - The contents of your November letter are noted, and that you prefer to raise your concerns in a manner which would lead to constructive change. - - the new Regional Chairmen are considering in conjunction with Department of Health and Lord Chancellor's officials whether some internal procedures relating to complaints by members need to be established - - I anticipate that views will have been taken and discussed by the Spring of next year.

2nd December 1998 PGW to JS
- - your latest letter (19 November) falls far short of a truly "substantive reply", and you have missed the most essential point yet again! This may be because [Mr NRO] (whom you quote) and your numerous colleagues have all avoided risking engagement in genuine discussion time and again.

The problem is that members are vulnerable to complaints and that there is no proper complaints procedure to deal with complaints about them. (There is the additional injustice that when the Lord Chancellor might, acting upon advice, get it dreadfully wrong, as in my case, there is no realistic, affordable remedy.)

I am pleased to learn that I have got through to you, at least to the extent that some of the problems I have aired since 1994 will now get serious discussion in 1999, at very long last. I hope I may be told the eventual outcome? Perhaps then I might receive also the usual letter of thanks for long, loyal and diligent service, as enjoyed by retiring tribunal members in the past?

January - July 1999 excerpts from correspondence between PGW & MK with a belated clarification in November 2004
These excerpts are included for context and interposed together here for easier reading:

19 1 99 PGW to MK (Regional Chair, MHRT Southern Region, successor to HP) Thank you for kindly phoning to discuss how you might be able to help, asking if I would like to be reinstated - - I think it exceedingly unlikely that the Lord Chancellor's officers would backtrack now, having entrenched themselves in their position
12 2 99 MK to PGW - - I have looked into the matter with great interest - - [including] the file of documents - - passed to me when I took over the Regional Chairmanship. Unfortunately - - the decision to reinstate is for the Lord Chancellor alone - - Whilst you could make the offer of a meeting to the Lord Chancellor's Department, I understand that whatever their view is, it is the Lord Chancellor himself who will not reopen the matter.- - I have raised [the lack of any formal complaints procedure] and can see no reason why one should not be set up in the MHRT - - I would urge you to let the matter drop now.

[This last is one of several kindly recommendations received, urging that I would be best advised to 'put it behind' me and 'get on with a life'! That I have done so, whilst continuing to pursue this complaint also, will be apparent to observant readers who may have noticed that I have been maintaining a music journal , the second of two music websites which I founded since retirement from the NHS, maintained as a fulfilling hobby after losing my main medical employment associated with membership of the MHRT.

2 3 99 PGW to MK I am grateful for your pro-active approach - - [does] my file which HP passed on to you remain privileged? If not so, may I make formal application to see its contents - -
11 3 99 MK to PGW - - I do consider the file privileged and I am not prepared to allow anyone to see it
19 6 99 MK to PGW - - for my region it is time to call an end to it - - our complaints procedure is now in place - - your input to this was of course much valued
23 7 99 PGW to MK I am now making a formal application herewith for an opportunity to peruse the Regional Chairmen's file about myself, likely to contain copies of any evidence upon which my suspensions, followed by unexpected dismissal, might reasonably have been based. I need to review their adequacy or not. Maybe there is none! - - there would seem to be no sufficient justification for your retaining control of my personal MHRT file without reasonable access, and indeed little point in keeping a file which nobody is allowed to see!
(this was unanswered)
24 11 2004 PGW to MK Were you present at the meeting when the 'non-retrospective' clause was discussed?   Unfortunately the Society of Clinical Psychiatry's offer to scrutinise the proposals at draft stage was not taken up
. Can you remember how and why that clause was introduced , leading in turn to everyone's excuse not to meet me? 
26 11 2004 MK to PGW The Complaints Procedure was drafted by me and two others. We were all categoric that this was a move forward for the MHRT and was not to be retrospective - - only future complaints should fall within its remit.

12th February 1999 PGW to JS
- - can you please confirm now that your deliberations will include consideration of the absence of any proper complaints procedure to deal with complaints about MHRT members? That glaring lack, compounded by the fact that there is no affordable appeal against ministerial decisions, astonishes professional and lay people who come to know what happened to me.

Will I - - be given the details of any complaints procedure proposed and - - finally accepted, please? (There are others too, members present and past, who might welcome an opportunity to comment.)

You have kindly confirmed the lack of statistics about suspensions and dismissals in your department. The DoH's position is similar - - because instances of suspension (and of the suspected practice of "not using" certain members) are not necessarily brought to central attention. - - can you confirm whether the present non-existence of any proper complaints procedures to protect MHRT members at either level, regionally or centrally, applies equally to the other tribunals, and also to "other judicial appointments" for which the Lord Chancellor is responsible?

I would mention also that I have a letter about the MHRT in the January Bulletin of the Royal College of Psychiatrists, and a fuller article to be printed shortly. You may well find that these do not square well with a doctor deemed unfit to be a MHRT medical member, as I have been dubbed after so many years service, with such very damaging consequences?

- - I have found myself fantasising recently an improbable scenario in which you were advising that I should be reinstated (you had done so inadvertently in July - - !) for a second time, to the new Region now under [new] regional chairmanship, until my natural retirement later this year. That was what [ZM] of the DoH and I had anticipated, until shortly before the quite unexpected letters from your department- -

Were such reinstatement possible, it might demonstrate a human face in your bureaucracy, and restore some belief that our fragile democracy is still concerned with natural justice and due process, in the context of tribunals, which operate justice with transparency, with openly disclosed evidence and 'reasons for reasons' of all decisions.

I have previously provided you with a copy of Dr DW's letter - - on those issues - - which accords with those of numerous medical colleagues and former MHT colleagues from whom I was so suddenly and unreasonably cut off.

I wonder whether a sensible way forward now might be for you to consider offering a meeting with yourself and, say, NRO (the one who never has anything to add!), to include also MB of the DoH - - (In the past I have found, in respect of my hospital patients subject to Restriction Orders, that face to face discussion with Home Office officials has resolved difficulties quickly, after protracted correspondence at seeming cross purposes.) - -

2/3/1999 (PT SCP to The Lord Chancellor)

Re: Abuse of Human rights within the Tribunal system:
- - our organisation is deeply concerned about the injustices and abuse of human rights suffered by doctors within the National Health Service. - - It was some dismay to discover that doctors appointed to Mental Health Tribunals, under your jurisdiction, and paid by the Department of Health, can be effectively dismissed and lose their livelihoods as a consequence upon the say so of a lawyer regional chairman who may be a judge, but who is not their employer. This can occur without there being a fair hearing before an independent tribunal. Indeed there appears to be no formal disciplinary or grievance procedure for doctors serving on these Mental Health Review Tribunals. This would seem to be a breach of the doctor's human rights. At worst this could enable any regional chairman to get rid of any tribunal panel member for whatsoever reason without being accountable and so fill the panel with his place men. This cannot be good for justice

We have in mind Dr. Peter Woolf who was suspended twice on the say so of the regional chairman, barred from taking part in tribunals (and thereby losing his public service income) and after protracted correspondence was finally dismissed following the judge/chairman's belief that the doctor has committed a serious misdemeanour - - this so called serious misdemeanour was that the doctor had failed to recognise an appellant before him at a tribunal as a person with whom he had once had professional contact in the past. This appears to have been brought to the attention of the judge/regional chairman and appears to have annoyed him and perhaps he allowed his own disturbed emotions to influence him.

The doctor was suspended forthwith and eventually dismissed. Thus the doctor's professional reputation has been destroyed and his livelihood as a part time tribunal member gone, all at the whim of that judge. There seems to be no formal method of appeal tribunal. This seems hardly right. - -

Personality disorders are prerequisites for power
(Dr Thomas Stuttaford, The Times )

4 March 1999 GH to PGW Selbome House www.open.gov.uk/led
[Mr JS] is no longer in this Division and I am currently dealing with his work. I will let you have a substantive reply as soon as possible.
GH District Bench and Tribunals Division

20 April 1999 GH to PGW
I am sorry that I have not yet been able to let you have a substantive reply. The delay is due to a number of factors, chief being the pressure of other work and staff shortages. I apologise for any inconvenience this delay may be causing you. - -

23 April 99 PGW to GH
- - it is encouraging, in view of the pervasive secrecy which has blighted this protracted affair, to note that your new website address is "Open Government" !

The new MHRT Regional Chairman - - too feels bound by the secrecy which has bedevilled this affair throughout. and she is not prepared to release to me a sight of what has been written about me in the file which she now holds as repeatedly requested in the past - - I have now published my own substantive views about the MHRT, in a paper which was circulated widely in draft and to your own department - - I had hoped for constructive comments in response. - - I hope you may find the last few pages of it relevant and interesting. - - I am bewildered that tribunal members do not have any protection comparable to that enjoyed by Magistrates.

Substantive responses have been promised by your colleagues repeatedly but oft delayed and never satisfactory. I hope that you will now be reviewing the whole thing very seriously despite your staff shortages - - . With so many changes of signatory during our correspondence with your Department, it must be hard for anyone to take a broad view. - -

13 5 99 PGW to GH
I have to deplore the long delayed, often evasive and usually unsatisfactory responses by all concerned - - It is regrettable that because of this frustration I have needed to bring into the discussions my MP, the BMA, the Council on Tribunals, the Royal College of Psychiatrists, and the Society of Clinical Psychiatrists, my own concerns as an individual having been brushed aside - -. I appreciate that staff shortages, and frequent movement of staff off the case, one after another, have been relevant factors, so that no-one has been able to take a leisurely and broad view of it all. I have more than once suggested that you consulted an outside independent expert.

I fear that your promised 'substantive response' - - is likely, at the end of the day, to prove no more than a damage limitation exercise. I was warned that - - the civil service would be unlikely not to have backed the regional chairman and that no amount of pleading would be likely to divert the chain of consequences - - and that the view of my regional chairman was bound to prevail. Also, from 1994 onwards that I should be patient because movement was afoot behind the scenes! - - - the passage of time has played its part and, at 72, I know now that no practical solution to right this great wrong - - could happen. - -

A small consolation is that I have reason to think that my persistence in publicizing the problems - - has, five years on, led to some positive action, with the new S Thames chairman being commendably pro-active.

7 7 1999 PGW to GH
- - Despite your staff shortages and pressure of other work which you have explained, perhaps you should now consider prioritising this matter?

21 July 1999 GH to PGW
- - the matter of internal procedures within the MHRT relating to complaints by members has not yet featured in meetings between the Regional Chairmen, the Department of Health and the Lord Chancellor's officials. - - As soon as I have something - - concerning the matter of complaints handling within the MHRT I will be in a position to let you have your long awaited substantive reply.

I appreciate that you have been extremely patient in your wait - - I can only apologise again for the delay, which I recognise is not satisfactory, and reiterate the fact that I will endeavour to let you have a substantive reply to your correspondence as soon as possible. - -

23 7 99 PGW to GH
- - I note with regret that correspondence has gone missing within your department, not for the first time! - - thank you for - - explaining that additional difficulty. You now have my several published papers dealing with this regrettable matter. - - I am sure you will want to study them before completing your considered reply.

LORD CHANCELLOR'S DEPARTMENT
SELBORNE HOUSE
LONDON SWIE 6QW
www.open.gov.uk/lcd
16 June 2000 DAVID LOCK MP Parliamentary Secretary to Nick Raynsford Esq. MP

- - The Mental Health Review Tribunal did not have a complaints procedure prior to the appointment of the Regional Chairmen. In our letter to you of 28 September 1999 Mr Hiden mentioned that a formal complaints procedure had been developed and was in draft form. I am pleased to say that the Secretary of the Mental Health Review Tribunal has confirmed that it has now been adopted and I enclose copies for you and Dr Woolf. It will not, however, apply retrospectively. - -
DAVID LOCK

22 June 2000 NR to PGW
The Rt Hon Nick Raynsford MP Minister of State Local Government and the Regions
- - I attach a copy of the response I have received from the Lord Chancellor's Department. Whilst changes have been made to the system to allow appeals, these cannot be applied retrospectively and therefore your case cannot proceed, I regret, down that route. - -

17 October 2000 Copy letter JK (Parliamentary Secretary, LCD) to NR (MP), c. to PGW & SCP
- - Dr Tomlin of the Society of Clinical Psychiatrists - - raises concerns about the termination of Dr Woolf's appointment as a medical member of the Mental Health Review Tribunal (MHRT).

Dr Tomlin might be reassured to know that, although they do not apply retrospectively , the Lord Chancellor recently introduced new arrangements to secure the tenure of part-time tribunal members including doctors. Under these arrangements - - no part-time tribunal member, who continues to meet the qualification for appointment, can be removed or their appointment not renewed without the concurrence of the Lord Chief Justice - -

8 April 2002 PGW to the Lord Chancellor

SUSPENSIONS AND DISMISSAL FROM THE MENTAL HEALTH REVIEW TRIBUNAL

Still in good health and away from home to celebrate my 75th birthday, my stocktaking review of an active professional life at this juncture has included reminding myself of my treatment at the hands of [the Regional Chairman] and your own, and the fruitless efforts to obtain just redress via the many government officials of your and other Departments, with whom there has been unproductive and (to date) abortive correspondence, and refusals to meet with me. That despite - - numerous promises of full consideration - - of the carefully reasoned complaints about my treatment.

That I am writing once more at this moment will, I trust, persuade you that I take this matter very seriously indeed and trust that you will also do so.

I write whilst abroad and without my strangely one-sided correspondence file before me - - Perhaps I should have taken fuller account of the opinion - - that it was inconceivable that the Lord Chancellor would not support one of his Judges, - -who assumed incorrectly, and sought my reassurance, that I had resigned from the MHRT, which he indicated would have 'saved' him from lodging his complaints (whatever they were) about me. I made clear that I would not do so, but would not wish to sit again under his personal jurisdiction.

I lodged my own very detailed complaint - - supported by expert lawyers in the field - - acting on the lawyers' advice, I relied upon my own direct approaches to the Department of Health and the Lord Chancellor, with additional support from my MP and the Society of Clinical Psychiatrists (March 1999). Two letters from the Society both remained unacknowledged. How can that be justified or condoned?

To summarise my position, I was suspended twice without due cause, and without sight of any supportive evidence to warrant such action on either occasion, despite repeated requests to be given an opportunity to study and answer any allegations against me. I have been denied by [HP's] successor a sight of my own MHRT file - - and she has also declined to meet me - -

The Department of Health administrator too had seen no likely objection to my resuming sitting as a Medical Member of the MHRT, and I did indeed resume doing so in the adjacent - - Region, with the full knowledge and support of the Regional Chairman responsible, who had made representations on my behalf previously.

The Dismissal when it came was a totally unexpected hammer blow, and the reasoning of the letter which the Lord Chancellor had signed was deeply flawed.

A further detailed response was accordingly lodged and a full response to that promised, but never received, which was the pattern throughout. Many communications went astray and there had been numerous changes of personnel responsible for dealing with the matter.

- - Due only to my persistence, a complaints procedure was instituted but, presumably for fear of opening 'flood gates', its review terms were made non-retrospective. I have challenged that, on the grounds that I have reason to believe that there is no cause to fear an unwieldy number of retrospective complaints; most probably, there would be none other.

I have never seen any evidence upon which suspension twice, or dismissal, could have been reasonably based. - - I have not seen by what authority (or reasonable necessity) I have not been allowed to see the file under my name held by the MHRT, which might clarify the 'other matters' mentioned in the Lord Chancellor's dismissal letter. Because of the lack of openness throughout, I have been impelled to publish about my experience of the MHRT and my difficulties - - this matter has blighted my professional and personal life in these latter years. I was driven to resort to publication of my experience (copies were supplied to your department) in the face of the obstructions and refusals of meetings with which my requests were met

I write once again to request a proper independent review of my dismissal and trust that the matter will be taken seriously, notwithstanding the pressures of work upon the Lord Chancellor's Department - -

18th April 2002 MTH (Chairman, SCP) to The Lord Chancellor

I have received a copy of Dr Peter Grahame Woolf's latest letter to you - - It is both sad and disquieting to read, again, his account of his two 'suspensions' from Mental Health Review Tribunal (MHRT) - - sad that a distinguished medical Member who has given so much of himself to the MHRT body since 1966 should depart from office in this way; disquieting because the prima facie case has clearly placed Dr Woolf on the moral highground,

Tribunals, not just those associated with mental illness, understandably operate with a degree of justice and transparency, almost, it could be said, as their raison d'etre, It is therefore so much more surprising that what appears to have happened to Dr Woolf goes so contrary to the very spirit of tribunals in their attempts to redress openly and fairly whatsoever alleged mistreatment/grievance has occurred.

Since Dr Woolf has chosen so frankly, and it appears understandably, to seek clarification of the reasons for his dismissal it seems only fair and courteous, in view of his perceived sense of hurt and his long and faithful service to the Mental Health Review Tribunal; 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. As before we support him most strongly in his request and await your comments with interest.

3 May 2002 KT to PGW

I would like to first apologise for any delays that have occurred - - we aim to give you a response by the middle of May. - - we are indeed taking this matter very seriously and giving it our full consideration.

Once again may I offer you my sincere apologies for the delay.

FROM THE RIGHT HONOURABLE THE LORD IRVINE OF LAIRG
7 June 2002 Lord Chancellor to PGW

- - I have read your latest correspondence and note your request for an independent review of your dismissal from the MHRT. My letter to you of 27 June 1998 , terminating your appointment as a Medical Member of the MHRT, fully set out the background and reasons for your dismissal. - - I am afraid there is nothing further that I can usefully comment on. Therefore, I see no justification for re-opening this matter. - -
(signed) Irvine of Lang,


16 August 2002 KT to PGW Selbome House 54-60 Victoria Street
- - I apologise that it has not been possible to reply to you sooner. You feel that the Lord Chancellor's letter to you dated 7 June 2002 was an inadequate response to the several main points of your representations. In his reply the Lord Chancellor stated that he had read your latest correspondence and noted your request for an independent review of your dismissal ITom the MHRT. He concluded by saying that there was nothing he could usefully comment on and stated that he saw no justification for re-opening the matter.

Having considered your latest correspondence I am afraid that there is little I can add to the Lord Chancellor's reply. - - so far as asking how many complaints have been - - made against medical members of the MHRT we do not hold such records here. That would be a matter for the MHRT. Also, you mention that you have not seen`:
"by what authority (or reasonable necessity) I have not been allowed to see the file under my name held by the MHRT". Again, this would be a matter for the MHRT to answer, not the Lord Chancellor's Department. Accordingly, I have copied this reply to [MB] at the MHRT - - to reply to you direct on these two points.

12 November 2002 MTH to The Lord Chancellor
You may recall my writing to you to thank you for the courtesy of your reply dated 12th June, 2002 . During the interim the Society has carefully considered its content. You mention, inter alia, the introduction of new arrangements to secure tenure of part-time tribunal members, including doctors.

It is perhaps worth pointing out that this move, which led to the inception of a formal complaints procedure for Mental Health Review Tribunal members (5th June 2002), was primarily provoked by Dr Woolf's seeking redress in his particular predicament.

Sadly however, it remains the Society's conclusion that an evaluation of evidence conducted fairly and openly has been denied Dr Woolf and, because of this, his professional work record (we refer to that with the Mental Health Review Tribunal and to which he contributed so significantly over three decades) remains in his view, and in our own, unjustly tarnished at the whim of its then chairman.

Our sadness relates not only to Dr Woolf's personal plight but also to the fact that your Office - -feels unable to grant him a formal hearing relating to his claim of unfair dismissal. This occurred within one of your own Office's departments (Mental Health Review Tribunal) which was regrettably deficient in what was even then already well established unfair dismissal legislation. Urging Dr Woolf to seek legal advice to pursue his claim (a potentially heavy expenditure at his advanced age) sits oddly, we submit, with the circumstance of his case involving as it does, one of the Lord Chancellor's departments.

We still hope you will see your way to a reconsideration of his case.

FROM THE RIGHT HONOURABLE THE LORD IRVINE OF LAIRG
25 January 2003 I of L to Dr M T Haslam, Chairman Society. of Clinical Psychiatrists
- - You have again requested that I reconsider this matter - - I took the decision to terminate Dr Woolf's appointment as a Medical Member of the MHRT having carefully considered all the relevant issues. I can only reiterate that I see no justification for re-opening the matter.

- - Dr Woolf is currently engaged in correspondence - - concerning the possible disclosure of information relating to his case. Whatever the outcome of the decision on disclosure I would still urge Dr Woolf to seek legal advice should he wish to pursue this matter.

(Signed) Irvine of Lang

13 February 2003 KT to PGW
- - we have had to consider the legal implications of your request for disclosure, and put the matter to the Lord Chancellor for his views. He has asked me to reply on his behalf - - Our view is that any request for personal information by you should be considered under the Data Protection Act 1998 . Under paragraph 4 of Schedule 7 - - data processed for the purposes of assessing any person's suitability for employment by or under the Crown, or any office which appointments are made by a Minister of the Crown, are exempt from disclosure. The Department is therefore not prepared to release documents relating to your dismissal to you .

The Lord Chancellor has asked me to say that, although he understands that you continue to be concerned about what happened, - - there is no Justification for reopening the decision.

March 2003 SCP (DW) to The Lord Chancellor
The Society - - felt encouraged to appeal further to you on behalf of Dr Woolf because your thoughtful letter - - suggests that you consider there is indeed a legal case to be pursued; that Dr Woolf is not a mere vexatious complainant.

We certainly believe that he has a case and we have been disappointed that correspondence between Dr Woolf and your officials in his seeking basic openness has been characterised by prevarications, albeit polite, and delays (now totalling some seven years). Rather bafflingly, it now appears that Dr Woolf has established (12 th September 2002) that Mental Health Review Tribunals personal files maintained by the Department of Health in their MHRT office (and not available to their subjects) do not contain any documents relating to any complaints about him whether in 1994 or 1997. Given the apparent circumstances of this case, it truly appears that “Kafkaesque” is not hyperbole in this whole sad business.

In general, Society members in their functioning as doctors, are regularly (and correctly) reminded by our lawyer colleagues about natural justice, rules of evidence and due legal process; the importance of reasons for their opinions and decisions. Much to our surprise and dismay all of these pillars of our justice system seem to have been overlooked in this matter.

Because of your urging Dr Woolf to seek legal advice we feel we must once more appeal to your good offices, as Lord Chancellor, to help restore the good standing of this wronged man in this matter.

23 May 2003 KT to PGW
- - You will appreciate that it has been necessary to review the past correspondence

- - You also asked us to confirm that our correspondence, whether by post or bye-mail, is not privileged and that we have no objection to publication of some of our letters. I can confirm that the correspondence is not privileged. - - it is a matter for you how you intend to proceed in the light of the concerns you have expressed.

- - Your comment that the Judge “over-reacted grossly by ordering suspension" was dealt with in the Lord Chancellor's letter to you dated 27 June 1999 . In that letter he commented "I agree that if [he] did suspend your appointment in a manner which amounted to termination, this would have been incorrect, as I alone have the power to terminate an appointment . However, in the circumstances, this would have made no difference , in view of my decision that you should not be serving as a member of the Mental Health Review Tribunal".

- - you have been informed that there is nothing further we can usefully comment upon in light of the Lord Chancellor's decision to terminate your appointment. That, I am afraid, remains the case - -

Department for Constitutional Affairs
27 August 2003 KT to PGW
- - Your request for a copy of “Dr [sic!]” HP's letter has been reconsidered. I can confirm that the power to withhold the documents from you is discretionary.
Neither the Data Protection Act nor the Code of Practice on Access to Government Information prohibits the release of information but both of them provide exemptions from the duty to disclose information.

I have been advised that the reference to paragraph 4 of Schedule 7 in my letter to you dated 13 February 2003 is incorrect. On reflection, no exemption should have been cited . The letter from Dr sic [R/Ch] is held on an unstructured manual file and therefore the subject access provisions of the Data Protection Act do not apply . - - I am sorry if I led you to believe that your right of access to any of your personal data contained in Dr P***r's letter was governed by the Data Protection Act.

- - As the Data Protection Act does not apply in this case I have considered whether the information should be released to you under the non-statutory Code of Practice on Access to Government Information . - - Information held by departments in their capacity as employers is exempt, as is information in respect of individuals holding judicial appointments. I therefore refuse your request under exemption 8 of the Code (public employment, public appointments and honours).
- - Under both the Data Protection Act and the Code the Department is not required to provide you with the information which you seek. The matter has been considered by the previous Lord Chancellor on numerous occasions and he saw no reason to change his view.

- - I am shortly due to leave my current post to take up other duties within the DCA. I am therefore copying this letter to my colleague [Ms MB], who has taken over responsibility for matters relating to the MHRT
KT JUDICIAL COMPETITIONS (TRIBUNALS) DIVISION

31 October 2003
Nick Raynsford MP to Lord Falconer, Lord Chancellor, DCA

Dear Charlie

Re: Dr Peter Woolf - 2a Vanbrugh Hill Blackheath, London SE3 7UF

You will see from Dr Woolf's file that he has had a great deal of correspondence with the previous Lord Chancellor concerning his suspension from the Mental Health Review Tribunal. I believe that the core of Dr Woolf's argument has been somewhat lost through the vast amount of correspondence and would ask that, given your new appointment, this case is reviewed once again in its entirety. - -- - - I would ask that you review this case again as I strongly feel that Dr Woolf should be privy to any complaint made against him that has not been previously released.
Nick Raynsford MP

4th January 2004  to Nick Raynsford MP:   

* The gratuitous reference above to 'a little surprise' about my " having resumed siting (sic) since the decision" (and the irrelevant citing of the Judicial Pensions and Retirement Act) shows that the letter-drafter had regrettably neither absorbed the arguments, nor checked the papers - easily done direct with PGW, or by refreshing his memory of the representations to Lord Irvine - before this letter was placed before the new Lord Chancellor and signed, without anyone even checking for spelling mistakes! PGW

27 January 2004 (PGW to PLH, DCA)
- - Lord Falconer's response - - does not allay our concerns - - may I put to you please some specific questions? What were your reasons for declining a face-to-face meeting ? What reasons are there for not reviewing my complaint ?  The superficial reasons provided have satisfied no-one as being reasonable or adequate. What more should I be expected to do to obtain a genuine review ?
I still believe that a face-to-face meeting would be a constructive forward step .- -
PETER WOOLF

27 January 2004 (PLH to PGW)
There is really nothing that I can add. Because I can add nothing - - a meeting is not necessary. I cannot advise you on what you do next, or comment further - - P L Hales.

10 February 2004 (PGW to PLH, DCA)
- - Review of my dismissal: Returning to your - - advising me to take legal advice (which is unaffordable, as are the costs implications) may I also enquire whether, should an earlier offer of pro bono legal representation be renewed, would your Departments, in fairness, abrogate all rights to recovering Treasury Solicitor and Court Costs from me ? - - those might otherwise threaten my resources in retirement, including my house, my wife's security and her inheritance? Only thereby - - could a debate proceed on an even playing field.

10 February 2004 ( PLH to PGW) Any costs you incur are at your own risk.

25 May 2004 (PGW to PLH) The successive responses of the two Lord Chancellors have been felt not to address the cogent concerns advanced - - Surely you would consider this case serious enough to warrant investigation?    If not, please would you let me know why not ?

Why was a non-retrospective clause introduced into the current arrangements?   No good reasons have ever been advanced and it is surely unacceptable.

Surely you would consider it reasonable to have sought fuller explanations in response to many questions which have remained unanswered?

To provide them would be consistent with the public's current desire for openness and with the recognised virtues of  "openness and transparency" in government. The negative application of non-mandatory discretion - - has skewed the balance of fairness to an extent that is patently unfair in regard to natural justice. 

No cogent or adequate Reasons that might make sense of what transpired were ever provided - - and there has been no opportunity to question or refute those which may have been advanced.  Surely that gives you unease? - - Over the years I have repeatedly been denied any face to face meetings with any of the officials involved - - Given the seriousness of the actions taken against me, this surely cannot be "good practice"?

June 2004 (PLH to PGW) - - the current Lord Chancellor and his predecessor have considered your case - - There is nothing to add to the responses you have received - - Please direct any further correspondence to Jason Yaxley.........

16 June 2004 (JY to PGW) - - Once I have - - got my self up to speed with the issues I shall, of course, contact you - - I am already committed to spending most of next week at a MHRT induction event.

21 June 2004 (PLH to PGW) - - Thank you Peter. - - I have been involved in Mental Health issues on and off for 25 years, so like you feel frustrated by the lack of cohesive support structures - - Philip

14 July 2004 (JY to PGW) - - I do not believe that a meeting would be constructive or useful - - I am convinced that this matter has become a crusade for you - - all I can do is re-iterate the answers you have already received - - it remains a possibility that you will be classified as a vexatious correspondent. *

* Readers may judge where legitimate vexation should reside?
PGW 15 July 2004 (PGW to JY) - You will have noted the assurance to Lord Irvine from the Society of Clinical Psychiatrists - - that they were not wasting the Department's time with a case of vexatious complaining - - numerous communications were necessary because the relevant issues, for some unknown reason, were never properly addressed - - how other than by persistent campaigning have long standing injustices and abuses of power become recognised and (where the law permits) remedied? - - Mistakes having been made, why has it been so difficult to get a genuine enquiry into them? - - 

21 July 2004 (JY to PGW) - - You are not prepared to accept the information provided to you by officials and both the previous and current Lord Chancellor - - I consider this matter closed. Continued correspondence without raising new and substantially relevant points, will result in my seeking to have you classified as a vexatious correspondent .

23 July 2004 (PGW to JY) - - What does puzzle me is why PLH directed me to you?  Throwing the Woolf into the Lion's Den?

Daily Bible Study: Daniel 6:1-23   [abbreviated]

Now Daniel so distinguished himself by his exceptional qualities that the king planned to set him over the whole kingdom. At this, the administrators and the satraps tried to find grounds for charges against Daniel in his conduct of government affairs, but they were unable to do so. They could find no corruption in him, because he was trustworthy and neither corrupt nor negligent. Finally these men said, "We will never find any basis for charges against this man unless it has something to do with the law of his God."

So the administrators and the satraps all agreed that the king should issue an edict in writing that cannot be altered and cannot be repealed .  So King Darius put the decree in writing that anyone who prays to any god shall be thrown into the lions' den. Then these men went as a group and found Daniel praying and threw him into the lions' den.

At dawn the king hurried to the lions' den. He called  "Daniel, has your God been able to rescue you from the lions?" Daniel answered, "My God sent His angel and he shut the mouths of the lions. They have not hurt me, because I was found innocent in His sight. Nor have I ever done any wrong before you, O king." The king was overjoyed and when Daniel was lifted from the den, no wound was found on him.

14 October 2004 (JY to PGW)
- - you have not raised any new or substantial points - - classification as a vexatious correspondent essentially means that the Department would no longer acknowledge or respond to any communication from you on your complaint - - I hope that this final e-mail will convince you that - - e-mails which go over issues which have already been considered and addressed will not change anything.

15 October 04 (PGW to JY)
- - points that have remained unanswered remain “new” - - To remind you of just two substantial outstanding points:-
1) who fixed it (and why) that I should have been singled out (to my best knowledge) and so severely disadvantaged by the “non-retrospective” clause (q.v. the “flood gates” argument)? - -  
2) Was the advice of an experienced consultant psychiatrist medical member, familiar with the actual urban work at the heart of the matter, sought concerning my representations and contentions that there could have been no justification for the bizarre response to imagined (or trumped up) misdemeanours? And my contention that there hadn't been any offences? - - you are all hamstrung in Britain's so-called "open government” by reliance upon the curious enshrined doctrine that ministerial decisions, however flawed, are unappealable [Google lists on the internet 222 English pages for “ ministerial decisions unappealable ”]. This engenders a world of unreality beyond tightly closed doors, behind which admission of human error and apology becomes impossible - -

24 11 2004 PGW to MK Were you present at the meeting when the 'non-retrospective' clause was discussed?   Unfortunately the Society's offer to scrutinise the proposals at draft stage was not taken up. Can you remember how and why that clause was introduced, leading in turn to everyone's excuse not to meet me? 

26 11 2004 MK to PGW The Complaints Procedure was drafted by me and two others. We were all categoric that this was a move forward for the MHRT and was not to be retrospective - - only future complaints should fall within its remit.

9 12 2004 KG to PGW I'm not sure how far you will get in attacking a decision to make a new system prospective only. What you may want to consider is approaching the current Regional Chair, Jeremy Cooper, and asking him if he will meet you and see if the matter can be approached with a fresh viewpoint and resolved. Failing that, there may be remedies available under the Freedom of Information Act.

December 2004 PGW to JC (Regional Chairman MHRT)  - - the Society of Clinical Psychiatrists [hoped for] an opportunity to comment on the draft of the revised complaints procedure - - my suspensions and subsequent bizarre dismissal must be regarded as ‘unsafe' until I have an opportunity to meet someone – anyone – in authority, which has been denied me throughout - the least I should be offered now is a meeting with you [or with your opposite number in the other Region]

11 2 2005 PGW to HP Thank you for explaining that you had shredded your own copy of the letter which caused my dismissal - - now that the Freedom of Information Act is in force, and the new Lord Chancellor has emphasised the importance of openness in the public interest, I hope that you will no longer wish to sustain your objection to my seeing a copy of the original, which remains on file at the DCA - - in addition to your main contention, which you got so very wrong, you referred to ‘other matters', which naturally intrigued me. Please would you confirm your willingness for the letter now to be released for me to see it?

18 02 2005 RS (DCA) to PGW - - I think the matter should be referred to the Lord Chancellor again - - it would be right for the Lord Chancellor to see the points you have raised since he last considered the matter - - I think the best I can do for you is to get the case to the Lord Chancellor - - I would be willing to meet with you after the Lord Chancellor has considered the case

17 06 2005 PGW to RS - - After all these years, I do hope it will not be just another legalistic document reverting to and endorsing the "reserves the right to suspend or terminate an appointment at any time" etc formula, without having considered the whole afresh, and proportionately to the supposed offence .

14 07 2005 RS (DCA) to PGW - - I appreciate that you have been waiting a long time - - I will make arrangements to meet with you as soon as possible, by which time I should be able to report on the Lord Chancellor's views.

27 09 2005 RAY SAMS MEETING WITH DR WOOLF AND DR NIAS

1 10 2005 PGW to RS - - I do now recognize that Decisions by the Lord Chancellor cannot be challenged - - even when they contain demonstrable errors - - factual errors of this importance should have allowed for reconsideration or an appeal ?  - - Your limited remit did not help to throw light on the existence of any “comparators” or precedents, or the nature of the evidence considered by Lord Irvine - - why Lord Falconer had not seen fit to take evidence from critically relevant witnesses, or why he had not responded to the urging from all sides that a proper review was fully justified?  To my knowledge - - a medical member failing to recognize or declare knowledge of a tribunal applicant has never resulted in summary suspension from the MHRT - - let alone dismissal.   It was issues such as this that we were hoping to discuss.

25 10 2005 PGW & DN to RS (from Notes of meeting 27 September 2005)
Mr Sams reported that the Lord Chancellor had “carefully considered“ Dr Woolf's latest request for a further review of his complaint about Judge Palmer - - the outcome is that Lord Falconer was not prepared to interfere with Lord Irvine's original Decision to dismiss Dr Woolf from the MHRT, for the reasons Lord Irvine supplied in June 1998. Dr Woolf has been questioning the adequacy of those reasons ever since. - - Mr Sams explained that he thought it preferable to make the DCA's final position clear "eye to eye" rather than through the post. Dr Nias was invited to ask questions; he had accompanied Dr Woolf, both doctors anticipating a frank discussion of what had gone wrong and how it could be put right.

Dr Nias questioned how could it be claimed that Lord Falconer had “carefully considered” the matter without
1. either of the Lord Chancellors having sought evidence from the Tribunal Members who sat on the occasion in question?
2. It was difficult to see how evidence from Judge Palmer alone could be accepted without checking, given the history of “personality clashes”?
3. Why was the extreme Decision of termination made, when the usual practice is apparently not even a suspension?
4. To justify the apparently extreme departure from usual practice, or at least put it in context, Dr Woolf was surely entitled to have sight of the first hand complaints against him and to know if there had been any precedents of suspension of medical members, let alone termination?

8 11 2005 RS (DCA) to PGW - -
MEETING WITH DR WOOLF AND DR NIAS Tuesday 27 September 2005 Mr Sams explained that he was conscious of the delay in responding to the points that had been made on the matters raised in the past and the new issues raised more recently. - - The Lord Chancellor had read the papers carefully but did not feel there were any grounds to re-open the decision. - - Both Lord Chancellors had reviewed the case and both considered that the initial decision was correct. Mr Sams was unable to offer Dr Woolf any other avenues to take the matter further, as there was no route of appeal - - there was nothing further he could usefully add - - the Department had done all that it could do. - -

9 11 2005 PGW to JT (DCA) We have read your note of the meeting carefully. Is Mr Sams prepared to confirm that OUR earlier summary of the meeting, which he has studied, is a fair one?

23 12 2005 RS (DCA) to PGW
re UNANSWERED QUESTIONS raised at 27 September meeting and again during November:
I am sorry not to have replied sooner. I can acknowledge that Dr Nias made the remarks you have highlighted - - I recognised that you and Dr Nias thought the investigation should have been handled differently - - There is really nothing else that I can usefully add.

6 January 2006 PGW to FoIA Formal Application to Freedom of Information Commissioner for disclosure of documents withheld - initially because of Data Protection Act having been conceded non-applicable to the issue, 27 August 2003): " Neither the Data Protection Act nor the Code of Practice on Access to Government Information prohibits the release of information " - -

c.f. Advice on prescribed form, which answers common queries: - - Q : Will I be able to get any information I want? A :Not always. The Act recognises that there will be valid reasons why some kinds of information may be withheld, such as if its release would prejudice national security or damage to commercial interests.....

19 January 2006 KH (The Information Commissioner, Customer Services Officer) to PGW - - before we can ask the public authority to respond to you, we will need a copy of the Information Request that you sent in 2005. Once we have this, we can ask the authority to respond to you. They should send you either the information or a refusal notice giving you the reasons. If they give you a refusal notice, they should give you details of their internal review/complaints procedure this is because this has to be exhausted before we can look at a complaint

2 February 2006 RS (DCA) to PGW Personal data, which is processed for the purposes of assessing an individual's suitability for judicial office, is exempt from disclosure under Schedule 7 of the Data Protection Act. Your request for information which relates to your dismissal as a member of the Mental Health Review Tribunal is therefore refused.- - the Information Commissioner (ICO) - - cannot investigate complaints about the Department's decision to refuse you information under the Code of Practice on Access to Government information
* c.p. 27 August 2003 KT DCA: - - therefore the subject access provisions of the Data Protection Act do not apply . - - I am sorry if I led you to believe that your right of access to any of your personal data contained in (the Regional Chairman's) was governed by the Data Protection Act...

8 March 2006 KH (The Information Commissioner, Customer Services Officer) to PGW
- - your case has now been put into the Central Government Team to deal with it under the Data Protection Act 1998. This is because the information requested is personal data. The team that it has gone to is currently working on cases from December 2005. I hope that this clarifies the situation...

[Jan/March correspondence: perhaps readers can understand that eventual "clarification" on behalf of the The Information Commissioner ? PGW]


13 May 2006 PGW to DCA - -This final letter puts to you some whys and wherefores. What harm would have flowed from having answered my relevant questions? Why were frank answers consistently denied? Why did Lord Irvine dismiss my serious complaint about vindictive treatment?
- - not having been allowed, in the interests of natural justice, to see what Judge Palmer wrote about me - - does no credit to your Department or to UK's Government as it now exists. - - The views of experts whom I have consulted - - have been summarized succinctly:
“ - - what is very much at issue is how the whole matter was handled. All in all it does seem to be a classic case of mismanagement and avoiding the real issues .”
My position and “attitude” towards the responsibilities of medical membership of the Tribunal over long years would have become abundantly clear if direct conversation had been allowed with any of your officials - - many of the questions raised were within the scope of discretion and that they could have been answered with the will to do so. WHY did you feel it was axiomatic to maintain the discretional right to withhold information so defensively and persistently? Are your ministry's civil servants (and the DoH's likewise) bound by a general policy to deny information requests whenever possible? If so, why?
Why was my complaint itself never – to my knowledge – addressed and dealt with? What is the attitude of your Department towards “whistleblowing” by responsible and concerned professionals?

DN to PGW It will be interesting to see if he shows any sign of having thought about your questions.

23 May 2006 RS (DCA) to PGW
I am afraid that there is no further comment that I can make on the questions raised in your letter.

23 May 2006 PGW to DCA "I am afraid" implies fearfulness? What had Mr Sams to fear from answering my final round-up of questions honestly? Is he forbidden to do so?

24 May 2006 JT (RS/DCA) to PGW - - the expression "I am afraid" was not an expression of fearfulness but simple courtesy - - I understand only too clearly that you wish to engage in correspondence - - Any further communication from you will simply be acknowledged and filed.

5 June 2006 PGW to RS I am indeed familiar with "I am afraid" as euphemistic usage, as per the countless "polite" apologies for delays and inconvenience that have peppered my correspondence with the two Departments which run the MHRT in an uneasy divide and share and confuse relationship. - - No, I should not wish to pursue correspondence with someone who by virtue of his employment as a civil servant, is not allowed to share his true thoughts...

- - - - - - - - - - - - - - - - - - -

- - “ there is a tendency in some departments to use every argument that can be mounted, whether legally based, code-based or at times simply obstructive
to prevent information being disclosed." - -
- - "delay is a main weapon of those who want to keep secrets.
Eventually, many people get fed up waiting for the information and go away."

Stephen Cragg The Times 31 05 2005

                                  "You sometimes make mistakes and have to correct them"
                                                Quote of the Day The Times 1 08 2005

* * * * * * *

" - - to this day- - not one authority has actually said sorry to us. Nobody has offered any help."
Angela Cannings on report which calls for "sensitivity, discretion and respect"
( The Times 6 September 2004)

                    “ All I want is for Blair to admit he were wrong and say Sorry! ”
Mother of soldier killed in Iraq – Butler report review, Channel 4, July 14 2004

Government . . . restores lost trust above all by its willingness to attend to what lies beyond the urgency of asserting control . . . by patient accountability and the freedom to think again, even to admit error or miscalculation.
Dr Rowan Williams, quoted in The Times , April 21, 2004

It is necessary that all governments be checked,
otherwise they lose the ability to think twice.

Conrad Russell The Guardian , March 24, 2004

Earlier this month the constitutional affairs secretary Lord Falconer said that
"without openness we cannot hope to build public confidence in the way we are governed". - - The government makes a big thing of having a conversation with the rest of the country. It is time for it to have a quiet word with itself.

Freedom of information - Leader The Guardian March 19, 2004

'An ordeal like mine either makes you or breaks you. They tried to crush me, but I wasn't having it. - - There's just me and this huge system, and over the years, I've got it in disarray. - - The system conspires to uphold itself.
They should have done things properly in the first place, but they still don't want to take any blame.'

David Rose (interview with WS) The Observer January 18, 2004

- - I of course sympathise with your sense of injustice at the way you have been treated, and at the absence of a proper opportunity to know and respond to the complaint against you. Unfortunately the access rights in this area are of limited use - - exemptions are, however, discretionary - as the DCA has finally conceded. They excuse the department from complying with your request, but do not prohibit it from doing so. So they would be able to provide you with much fuller information if they wanted to - -
Maurice Frankel Director, Campaign for Freedom of Information September 2004

Opening up Whitehall and introducing freedom of information is a vital task - and vital that it succeeds. It's essential that government finally embraces openness. The benefits of open government are clear:
transparency, accountability, honesty.

Lord Falconer of Thoroton, Lord Chancellor Law for Journalists Conference November 2004

Sir: I welcome your focus on the Freedom of Information Act. But it is emphatically not the case that officials can simply deem it "not in the public interest" to provide an answer to an information request. There is a presumption of disclosure - - the Act expressly talks about the public interest in disclosure. In most cases, information must be disclosed where this outweighs the competing public interest in an exemption. So public interest considerations can secure greater openness, not justify secrecy "if all else fails". In any event, my office stands ready to consider complaints that an exemption has not been properly applied or - where relevant - that the public interest in disclosure has not been fully considered.
RICHARD THOMAS Information Commissioner The Independent 28 December 2004
(Letters to the Editor , Freedom of Information Act and others)

- Lord Falconer of Thoroton, QC, said he expected that ministerial veto would be used only rarely to stop papers being released under the Freedom of Information Act, which comes into force today - - The Lord Chancellor insisted that it would be used only under exceptional circumstances. He said: “That ministerial veto will be very rarely used.- - "
The Times , January 1 2005

- - anyone applying for information must be prepared for uncompromising bureaucracy,
setbacks and frustration along the way.
A plethora of reasons will be offered for withholding documents - -
Those who persevere may have to appeal to the Information Commissioner if they are turned down,
and then go through another long process.

Magnus Linklater, The Times January 6 2005

- - " once an error is made, the unspoken rules say that it must be persisted with,
and everyone is required daily to offer their fresh support for yesterday's mistake. "

(Daniel Finkelstein The Times April 5 2006 )

L et the penalty fit the crime
- - I was disturbed to read of the two-year prison sentence given to Angela Dublin (report, April 11)
- - On another, luckier, day (her) acts of negligence would have amounted to violations of
road traffic laws that might have added points to her driving licence.
Ms Dublin has been sentenced to prison not because of the nature of her negligent actions - -
the court has bent itself to serve vengeance through the unnecessary infliction of suffering,
a far more deliberate act than Ms Dublin's.

(CHRIS EADES The Centre for Crime and Justice Studies The Times April 13, 2006 )

Persistent questioner is barred
A man who has clocked up more than 750 freedom of information demands to the Ministry of Defence, the police and the Cabinet Office has been barred from using the service.
The Department for Constitutional Affairs said "There is no desire to deter FOI requests that are genuinely seeking information, but we do want to deter vexatious ones."
Maurice Frankel, of the Campaign for Freedom of Information, said: "The real concern is not vexatious requests." The danger was that the government intended to make it harder for ordinary people to obtain information - -
The Guardian August 1, 2006

Hindsight Corner

Wise and prophetic words have been offered from time to time, discounted and (it may be thought) foolhardily ignored. But on the way, between 1997 and 2006, there's been a lot of eye-opening discovery about defensive government !

JW (Chairman of MHRT Regional Chairmen's Committee, and Honorary Fellow of the Royal College of Psychiatrists) to PGW, July 1998:
- - it is increasingly difficult to find "liberal judgment". The civil service are unlikely not to have backed the Regional Chairman's judgment unless it was completely unsustainable - - details are irrelevant - opinions have been formed - - No-one is likely to give way - - "put it down to experience" and do not let injustice, keenly felt, cast a forward shadow - - realise how "illiberal" our society has become . - -

Observations by a Consultant Clinical Psychologist:
- It is a matter of concern that this appears to provide an example of "abuse of power".  The dismissal letter by the Lord Chancellor makes the point that he and he alone makes the final decision, and later, to quote:  "I see no justification to reopen the case".  It is noteworthy that there is no explanation as to why the arguments you put forward provide no justification.

- The Lord Chancellor may have been seen to lose face if he had backed down.  So it not surprising if the easy way out was taken and the arguments put forward by you and the SCP dismissed out of hand. By repeating that the Lord Chancellor has the final word Mr Yaxley seems to imply that you have to accept the implication which follows, namely that you have become a victim of the system, however flawed it might be.  Pity that the operative grievance procedure limitations cannot be stated as such! 

- Not giving any reason for a decision may simply reflect the attitude of "abusers of power" and how they characteristically think; e.g. "I have made my decision" is to them sufficient reason!

- My own long-held view is that the government should have a cabinet minister dealing with problems that are often amenable to a quick and obvious solution. Given the arguments and the support of the SCP and your MP it would seem quite reasonable for such a minister to check to see if there has been unfairness or misunderstandings - and then to suggest a way forward.

- the system is clearly unfair and people ought to try harder to make things better, rather than just to accept defeat or to say "that's life". Much more can be done to bring about improvement, if only people in authoritative positions had more time to devote to specific matters of obvious concern.

- "meeting is not necessary" etc (PLH, 27 January 2004 and later refusals): but it might lead to a different perspective; that after all is a reason for discussing things.
(Dr. David Nias, Consultant Clinical Psychologist, University of London, July 2004)

Addendum DN, April 2006:
What remains very much at issue is how the whole matter was handled, e.g:
- When you appealed against not being given a proper reason, why was the LC letter not cited and carefully explained?
That could have led to discussing the practicalities of Tribunal work versus keeping to the "ideal" principles of "good practice". Should you have been given more of a chance to respond to the accusation?

- What is the evidence that you refused to recognise the principle of a potential conflict of interests? Would it have made a difference if you'd given in and admitted that they had a point - albeit a hypothetical one? Perhaps you were the first not to give in! Why were examples of previous cases of a similar nature not cited, if there had been any?

- did your case set a legal precedent?- The important issue from the LC's standpoint appears to have been your reluctance to humbly accept the principle (hypothetical or whatever) that he was making. You seem to be a victim of the need to "tow the party line". The official line seems to be that one must pretend to work to the "ideal" even though at the same time it is necessary to be "sensible". ("Likelihood" of conflict of interest implies more than a remote, infinitesimal "possibility".)

- This sort of discussion should have preceded the final and unappealable Decision of the LC. Better that, than to have put themselves in a position where to back down would have been to lose face.

-At the very least someone should have met with you before the Decision was made to explain why, after months of delay, the LC department was not happy.

- - if the argument had been put to you directly and you'd have bee n able to address the issue right at the outset , things might have turned out entirely differently.  I agree with David Nias's comments on this. (Maurice Frankel, Director Campaign for Freedom of Information )

* * * * * * *

Readers' observations on this paper will be welcomed

 

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

- - - - - (1999) Inside the Mental Health Review Tribunal British Journal of Clinical and Social Psychiatry , Vol 10 No 1.

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

- - - - - (2003) Openness Denied – Excessive Government Secrecy? Justice of the Peace , Vol.167, No.38.

- - - - - (2003) Think twice before you serve on a tribunal Hospital Doctor, 17/04


* * * * * * *

Acknowledgments
My thanks to all the many doctors and lawyers, tribunal members and others who have helped with support and advice; especially to the officers of the Society of Clinical Psychiatrists; Dr Harry Jacobs, former Chairman, Dr Peter Tomlin, Hon. Sec of the Suspended Doctors Group and Dr Dermot Ward, Chairman of SCP, for encouragement and representations to the Lord Chancellors and to Dr Ward for accompanying me to a meeting with the BMA; and to Dr David Nias for his assistance with the bibliography, support at meetings in the Department for Constitutional Affairs and with the Campaign for Freedom of Information and advice upon this paper. PGW

Postscript from a radiologist sacked after whistle-blowing following his discovery of thousands of unreported X-rays in a teaching hospital:
How do you blow the whistle without "putting the Trust into disrepute? I would now advise anyone not to bring up a problem in a hospital because they will be disciplined
...(Hospital Doctor, 13 December 2007)

 

 


 The views expressed in the above paper represent the personal views of its author and not the Society.