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Whistleblower to Vexatious Correspondent ABUSE OF POWER and PUNISHMENTS WITHOUT CRIMES P Grahame Woolf FRCPsych Medical Member of Mental Health Review Tribunal 1966-98
Lord Falconer of Thoroton, his successor, who endorsed the decision in 1999,
1. Abstract ABSTRACT This extended paper arose from two routine Tribunal hearings at which the writer had served as the medical member of the panel, and follows the original and related publications in the British Journal of Clinical & Social Psychiatry and on the Society of Clinical Psychiatrists' website. 1. After the first hearing in 1994, a senior social worker (who had failed to provide a requisite report) complained that she'd felt unduly pressed by questioning (which had not been disallowed by the President) about her discharge plans for the patient. He subsequently died in police custody and the coroner's extremely critical conclusions (publicised in an investigative TV documentary) clearly vindicated the writer's persistent questioning as having been both pertinent and necessary. 2. During 1997, another patient had mentioned during a preliminary interview that he thought he had met the writer some many years previously (at a location which could not have been correct). This was brought up again during the hearing and because no social work report was available (again, as in the above case) an adjournment was granted. The patient was not disadvantaged by a resulting one week delay; at the adjourned hearing he was not discharged. The Regional Chairman, a recently retired Crown Court Judge new to his post, later took the writer to task for having omitted to mention before the hearing possible prior contact with the patient; a quite unreasonable expectation in the circumstances. In both instances the writer found himself, without prior warning, summarily suspended by letter. The first suspension was partially lifted following a meeting at the Department of Health. The Regional Chairman's second suspension prompted a formal (barrister assisted) complaint whch led eventually to the Lord Chancellor converting prolonged suspension into unappealable dismissal, after prolonged frustrating correspondence with his Department, without addressing the writer's complaints and without any face to face meeting with officials. He was never allowed to see or respond to the correspondence pertaining amongst the power holders, or to know the substance of entries in his "personal file" held by the Tribunal. Long later, in 2005, an after-the-event meeting was eventually afforded with an official of the Lord Chancellor's department, a meeting at which discussion of the dismissal decision was explicitly disallowed, on the grounds that "the decision of the Lord Chancellor is not subject to appeal". It is a far from uncommon occurrence for a patient to be seen by the same Tribunal member on more than one occasion. When it emerges that a patient has 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 an occurrence, let alone for it to attract official attention and lead to a suspension and, uniquely, dismissal. To my knowledge there is no record of a similar outcome involving any other MHRT member. Disclosure of evidence which triggered the dismissal (most especially correspondence between Mrs Gale, President of the WM hearing, the Regional Chairman and the Lord Chancellor) was systematically refused by all of them. Doing that was eventually justified by the Lord Chancellor's department under an obscure Code of Conduct which allows for discretionary witholding of information: "I therefore under exemption 8 of the Code refuse your request" (Aug 2003) ! Despite energetic support from the Society of Clinical Psychiatrists and the writer's Member of Parliament, questions were never answered. Early legal advice was that a Judicial Review would have a good chance of succeeding but that "any costs you incur are at your own risk" (Feb 2004). One was left bewildered and speculating why such an extreme measures had been taken, and in such a secretive manner. After the second suspension the writer felt so outraged that he had lodged a formal complaint against the Regional Chairman on several grounds. That "whistleblowing" may have triggered the conversion of suspension to dismissal. If so, it seems to reflect a classic case of abuse of power. The formal complaints against the retired Judge were, to our knowledge, never dealt with although, some short while later when there was a reorganisation of the MHRT, he did leave office. There has to be a better way of checking apparent unfairness and misunderstandings, and to resolve problems that are amenable to quick and obvious solutions. This paper is presented as an example of why, in the current climate of supposedly greater openness by government, this is so desirable and indeed remains necessary. * * * * * * * SETTING THE SCENE Two commonplace and unremarkable incidents at Mental Health Review Tribunal hearings in 1994 and 1997, which would more usually have passed without special notice, led to the writer, a senior consultant psychiatrist, having to complain about how Henry Palmer (a retired Crown Court judge who had recently become South Thames Regional Chairman) had over-responded on learning about them, distorting and blowing them up out of all proportion. He ordered the doctor to be suspended from serving as medical member of the MHRT (twice!!) and, long afterwards, instigated his formal permanent dismissal by the then Lord Chancellor. That had followed a lengthy period of service (1966 -1998) during which the writer had been co-founder of the MHRT Members' News Letter, an initiative which was welcomed by the Department of Health which supported its elevation to become the Members' Journal, a publication which went from strength to strength. Having a wide experience in many relevant capacities, he had been called upon to lecture on the roles of doctors who are variously required to produce tribunal reports on their patients, to prepare independent reports for patients' legal representatives, and to sit on the panels as medical members of the MHRT. He had also published about the MHRT for the Royal College of Psychiatrists, on whose specialist committees he had served, as well as a period chairing his local Medical Commitee of all specialties. Prior to his untimely death he had enjoyed the confidence of the universally respected, long serving Regional Chairman, the late Mr James Cooke, accompanying him to the House of Lords when changes to the Mental Health Act 1983 were being debated. The co-founders of the MHRT Members' Newsletter, its Editor and the writer, 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 Palmer's regional chairmanship. His relevant prior experience had been
mainly (perhaps exclusively) presiding over special “strengthened”
tribunals for “restricted” psychiatric patients, those who because of the seriousness of their
offences had been
detained in hospital for treatment without limit of time
and subject to Home Office control. 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. As Regional Chairman, Judge Palmer was a “new broom” who, when interviewing prospective legal presidents, advised them in terms 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, and he didn't encourage the doctors to expand on their pre-hearing examinations before opening the proceedings. He also actively ‘monitored' tribunal hearings in his Region to an unprecedented extent, seemingly unaware of the effect of his frequent appearances, which were frankly intrusive and oppressive, if not actually illegal in seeking to influence the panel. 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 to me as out of his depth in this unfamiliar arena, especially when confronted with often incomplete preparation for those hearings which have to be set up within a week. Reports are frequently scanty (sometimes none) and doctors and social workers who might not know the applicants appeared before him. 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 the writer twice, that believed to have been an unique occurrence. After the first of them he was eventually partially reinstated, though precluded from sitting in his home London Borough, which abutted the next Region a mile away. And in a "dog in the manger" way, transfer to that adjacent Region was refused because Judge Palmer was "short of medical members"... Neither was the writer allowed to see correspondence between the Judge/Regional Chairman and his Presidents of the days, nor given access to the member's "Personal File" which was held successively by the Regional Chairmen. In stark contrast with his predecessor, Judge Palmer did not seem to embrace any 'duty of care' towards his members as their representative to officialdom, and to balance the disciplinary role in which he saw himself importantly placed. Previously, earlier in 1994, the need for a proper Complaints Procedure, as was common elsewhere, had been urged. But the Members Newsletter Board deemed it prudent to explore this so obvious need diplomatically 'behind the scenes', rather than by publishing a full detailed proposal which had been promulgated. Long
after the 1997 suspension, about which the writer lodged a detailed 40 paragraph
formal complaint (assisted by a specialist barrister who became also an MHRT
President), and after Judge Palmer's
appointment as Regional Chairman had by then come to an end, was he unexpectedly dismissed by the Lord
Chancellor, as a person “unsuitable to continue to act as a medical
member in any Region of the MHRT”. Chris Jackson, 56 - - a
magistrate from Rugeley,
Staffordshire - - said: Dr Dizaei, PhD in race
relations, said after the
collapse of his trial: “No one should be bullied
out of a job” None of the three disciplinary actions, two suspensions and the ultimate dismissal, made sense to medical and other colleagues who learned about them. That 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, but too late to help the writer, persistent 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 The full text of that Complaints Procedure was published on a new MHRT website (October 2004). 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. [That text is "no longer available" on the internet ! I have been unable to ascertain whether it was ever invoked on behalf of any other Member, whether it continues in force or whether another Complaints Procedure might have superceded it ? (November 2008)] My complaining rebounded, unexpectedly and long afterwards, resulting in dismissal from medical membership of the Tribunal by the then Lord Chancellor, without ever an aactual response to my complaint. " - - 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 And, q.v. J. M. McKoy "Suspending a Physician without a Hearing" 2004
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. 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 apparent ignoring of the complaint and dismissal of the complainer (long delayed and arguably perfunctory and flawed in its reasoning). That fostered an enduring sense of grievance and injustice. [Only very belatedly have I learned unequivocally 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] Daring to complain rebounded. Suspensions and eventual dismissal from medical membership of the Mental Health Review Tribunal had consequent profound effects upon the writer's 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, most of whose individual stories and pain remain private and unshared except in confidential secrecy, such as the Society of Clinical Psychiatrists provides in its support group for suspended doctors. The majority of its suspendee members are eventually fully exonerated. It is therefore only possible for the writer to share his experience of testing so-called “open government” because he is a long retired from the National Health Service, therefore no longer dependent for career progress upon approval and patronage. Advice received 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, even though 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 on some aspects of the problems (listed below) was a face-to-face meeting finally convened with a civil servant within the long chains of power holders and their representatives, after years of trying. But frustratingly, that proved to be ring-fenced and in no way the anticipated opportunity for constructive mutual exchanges towards concensus and righting wrongs. SECRET EVIDENCE AND UNAPPEALABLE DECISIONS This paper illustrates by graphic example how Britain's "open government" [sic] 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 an unreal world in which admission of human error and apology become impossible. The two incidents themselves, and especially the withholding of any evidence that might exist to explain the over-reactions, have been reported concisely in the MHRT Members' NewsSheet and Journal and elsewhere. All the points quoted 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, their hands tied behind their backs (they never identify their ranks or experience) tried to bolster up a patently flawed Decision (drafted apparently by civil servant 'NRO', and signed by the then Lord Chancellor, Lord Irvine) by evading, year after year, persistent questioning from the consultant psychiatrist victim, his MP and the Society of Clinical Psychiatrists. Illegality in the original actions was admitted subsequently, but 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 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. To leaven a heavy read, and hopefully help to excuse its length, the narrative is punctuated with newspaper quotes* which may broaden the context. “ - - the power to withhold the documents from you is discretionary " - - If ever you want to hold power accountable, you need access to the documents - - " This paper 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. The justification for secrecy about those arguable misdemeanours is not so far from the position for terrorist suspects, reaffirmed by a majority decision of the Court of Appeal: "Terror suspects can be subjected to control orders even though they know nothing about the evidence against them. - - There might be cases where "very little indeed" or nothing could be disclosed to people accused of being involved in terrorism. and, but two days later: There is a powerful lobby against openness, made up of those with a vested interest in avoiding scrutiny - -
open up the secret state and let the public judge for themselves. Necessary circumspection has ensured that the full stories of many far more numerous and news-worthy cases of NHS consultants suspended in mid-career remain hidden. All of them suffer, but the majority are eventually fully exonerated. “I felt isolated and bereft - - as though all the years I have put into my job were for nothing" " - - challenging those in power at length and in depth - - is a prerequisite in a democratic society - - " This exploration - its development prompted by thinking about a number of long delayed eventual reversals of injustices and criminal convictions (some of them achieved posthumously, and only after years of persistent campaigning) - has been long in gestation and revision, inevitably with some repetitiveness. The bulk of this paper was compiled during a period of enforced confinement with a broken leg. I began to review my own experience in the dramatic context of the then ongoing Hutton Inquiry into the circumstances surrounding the death of Dr David Kelly, during which “ - - the inner workings of the British government were laid bare as seldom before” The inquiry secretary had said: "Lord Hutton, after six years dealing with freedom of information [at the Home Office],wanted every document entered as evidence, and every word put on the website. Even so, cogent questions and suspicions remained unresolved, and complaints about undue and excessive secrecy in government departments hit the media with numbing frequency, especially with the ongoing furore about the War against Iraq and the rapid constitutional changes being fostered hastily at home. A parliamentary select committee said that “the culture of secrecy” was embedded in the Home Office: - - everything “must be kept under wraps”. Duplicity, evasions - but no answers - - When the powerful feel threatened, As an Appendix, extensive extracts will be provided 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 Lord Falconer (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 of doing so, in January 2004 he merely endorsed the decision taken by his predecessor six years before, apparently without having been given by the civil servants any opportunity to genuinely review a dubious initial decision; and he even did the same again in 2005 in what must be a rare circumstance - re-referral for review by one of his own civil servants... SPECIALIST ADVICE Internal evidence indicates strongly that neither of the two Lord Chancellors involved, formerly senior QCs, had been placed in a position to exercise his trained mind upon the actual submissions, and the background to them, before penning their signatures to responses drafted by civil servants unfamiliar with the practicalities of psychiatric work. Nowhere in the voluminous correspondence is there any indication that any of the three Departments involved (Department of Health, Lord Chancellor's Department and its successor, the Department of Constitutional Affairs) had sought medical advice from an independent consultant psychiatrist, ideally from one with experience of the pressures in urban city centres, who could have provided perspective on the difficult realities of the onerous (and sometimes dangerous) task of making preliminary, community based examinations of prospective patients, to help decide whether they required admission for fuller assessment in hospital under Section 2 of the Mental Health Act. Extracts from the voluminous correspondence appended are but the tip of an iceberg, held in three thick lever-arch files and on computer. Complete copies of the documents are available. CORROBORATION AND DISTANCING There is extensive documented corroboration and support for the position taken by the writer, with powerful but ultimately fruitless legal input from a specialist solicitor (LS-M) and from three barristers (KG, PB & AB). But 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 General Medical Council (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 - a UK whistleblowing
charity - explained that the issues do not fall within their area of
expertise, and drew my attention to 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 with fresh legal opinion which, in turn, they refused to disclose - and which subsequently was acknowledged as flawed ! Tthe 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 had been “not privileged” from publication, which makes what follows perhaps unique? That
admission contrasted starkly with their continuing zealous
maintenance to date 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, "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
Truth about Lying: Collins dictionary gives two definitions: 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! 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. RETROSPECTIVE AND NON-RETROSPECTIVE The new arrangements were introduced with a “non-retrospective” caveat, which the LCD has never justified although they cited it in support of their refusal to re-examine my case? That has a piquant obverse, turning the 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 Jeffrey Archer's return from prison 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 -
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. At least, that proposal before the Lords would have been subjected to debate! Without any comparable opportunity to challenge any of the four successive ‘executive decisions' - suspension (twice), exclusion from the MHRT's Members' Annual Meeting whilst still a medical member, and later being punished and disgraced by dismissal from the MHRT - and, imperfect though any analogy be, the writer found himself a sympathetic if strange bedfellow for the disgraced peer, even though not imprisoned for his alleged peccadilloes. [Addendum 1 12 2004 ]: The origin of
the crucial and infamous "non-retrospective" caveat, which blocked my recource to review within the MHRT, has been very belatedly
disclosed in correspondence with MK, the Regional Chairman who succeded Henry Palmer and fronted
the drafting of the Complaints Procedure* : 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 existing as a bastion of civil liberties for 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 Lord Chancellor's Department was re-constituted in 2003 as the Department of Constitutional Affairs (DCA) headed by Lord Falconer a new, "transitional" Lord Chancellor. (There have been further reorganisations later, with the Department of Health bowing out and Jack Straw, Lord Chancellor and Secretary of State for Justice, now in charge.) None of those officers who wield such great power behind the scene ever agreed to meet, nor to welcome me for discussion in the company of a representative of the Society of Clinical Psychiatrists. The 'economical', formulaic responses signed by the former Lord Chancellor and his successor 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 relegate my own experience to an appendix detailing correspondence, chiefly with the Lord Chancellor's Department (LCD). That correspondence, which has been confirmed to be ‘non-privileged', illustrates graphically the workings of Government around the turn of the 20th-21st Century. There has been similar evasion and defensiveness in resisting legitimate enquiries to the MHRT's own administration and some of its its personell, and to the Department of Health which overseed its activities and (maybe?) continues to do so in part, with "playing of" one Department against the other. It was throughout 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 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 untrammelled authority exercised in the practice of the Chairman concerned. Prior to his appointment, all members were perfectly well aware of conflict of interest possibilities, and occasionally acted to disqualify themselves from a panel, e.g. doctors who had treated an applicant recently, as specified in the Tribunal Rules. Consultant psychiatrists expert 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 of maintaining unbiased reporting to the Court, is well understood (latterly, joint instructions of a single expert have become common). Judge Palmer, as new Regional Chairman, took that consideration to an extreme, and his doing so was the subject of vigorous correspondence, private and 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. REGIONAL CHAIRMEN'S INCOMPATIBLE 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 nominally responsible for appointing a panel of three members, a legal president, a medical member and a lay member for each hearing. That task was 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. 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 Judge Palmer ought to have disqualified 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. "TOO PERSONAL" Another reason that this paper on the WWW is necessary is that a number of previous submissions for publication, some of them invited after an initial show of interest, failed to actually reach the press, or did so in an emasculated form, personal aspects of the problems 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 – such as my own case - had become suspect, and were
rejected under the more rigorous requirements of scientific validity. 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 that 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. When dismissed I was already serving in discretionary ‘overtime' (because of the shortage of experienced medical members, extensions of appointment beyond the 'retiring age' of 70 had become usual and necessary to keep the over-stretched system going). ‘Non-renewal' of appointment, with what used to be a customary letter of thanks for long service, might have been more appropriate than the ignominy of formal 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 - 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 Judge Palmer, and of his repeated reiterations that he stood by it, do not carry conviction that the drafts of the Decision document had been thought through thoroughly before being signed by Lord Irvine, an eminent QC elevated to one of the highest offices in the realm.
* * * * * * * - - “
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." - - "You sometimes make mistakes
and have to correct them" * * * * * * * " -
- to this day- - not one
authority has actually said sorry to us. Nobody has offered any help." “ All I want is for Blair to admit he were wrong and say Sorry! ” 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. It is necessary
that all governments be checked,
Earlier this month
the constitutional affairs
secretary Lord Falconer said that '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. - - 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: 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. - - anyone applying for
information must be prepared for
uncompromising bureaucracy, - - " once an error is made, the
unspoken rules say that it must be
persisted with, L
et the penalty fit the crime Persistent questioner is
barred - - - - - - - - - - - - - - - - - - - - - - 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 2008, 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: Observations by a Consultant Clinical
Psychologist, July 2004: Addendum April 2006:
SUMMARY The driving force for this paper was the belief that, in an advanced democratic society, injustices ought to be capable of investigation and appropriate resolution. Despite the Lord Chancellor's admission that the Judge did not have untrammeled authority to suspend members of his own team (only the Lord Chancellor had such authority) the suspension was inexplicably made permanent and converted into dismissal. Upon questioning the whole basis for those actions, it was pointed out that decisions of the Lord Chancellor (even if made in error) are "unappealable"... Following the initiation of the Freedom of Information Act (2000) further requests for information were likewise answered with evasiveness and again led nowhere. Instead, this paper is presented to document the writer's persistent attempts to seek justice. If the true reason was whistleblowing (in this case about the work of a retired Judge) then it provides an example of how whistleblowing not only is rarely welcomed by officials, but is deeply resented. Instead of leading to much needed changes, it often leads to marginalisation, and at best to non-retrospective changes of policy that may or not be correctly attributed to the whistleblower. Readers are invited to form their own conclusions from the narrative which has been carefully documented to best ability.
Parker, J (2009) Whistleblowers Spiritual Strength Tested [enquiries: medicalwhistleblower@gmail.com] Henik, E G. (2008) The Effects of Value Conflict and Emotions on Potential Whistle-Blowers. Journal of Business Ethics, Vol 80 No 1, pp 111-119 Sawyer, K. R. (1995) The Test Called Whistleblowing De Maria, W (1995) WHISTLEBLOWERS AND SECRECY: Freedom of the Press Conference, Bond University, 1995 Greenblatt, M. (1986) The use and abuse of power in the administration
of systems. Psychiatric Annals 16, 650-652. 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 (1994) British Journal of Clinical & Social Psychiatry, 6 McGuire, J. & Ferencz, N Mental Health Review Tribunals in the UK: Applying a Therapeutic Jurisprudence Perspective. Court Review (2000) McKoy, J. M. (2004) "Suspending a Physician without a Hearing" 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. [http://pb.rcpsych.org/cgi/reprint/15/7/407.pdf] [2,200 words] - - - (1999) Serving the MHRT 1966-98. Psychiatric Bulletin, 23, No. 4. [c. 1,000 words] - - - (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 [2,100 words] - - - (2001/2002) Quest for Fair Process and Natural Justice [1800 words] - - - (2003) Openness Denied – Excessive Government Secrecy? Justice of the Peace , Vol.167, No.38. [c. 300 words] - - - (2003) Think twice before you serve on a tribunal. Hospital Doctor, 17/04 [350 words] Click on SCPNET Points of View for Dr Woolf's Editorials January 2005-May 2006, including a section (Some papers listed are no longer available online. All are available from the author.) Key Words: Whistle-blowing, abuse of power, secrecy, evasiveness & procrastination, Postscript from a consultant radiologist sacked after reporting his discovery of thousands of unreported X-rays: * * * * * * * APPENDIX 1 - CORRESPONDENCE Main personages: DH (Department of Health) LCD (LORD CHANCELLOR'S DEPARTMENT) Legal Advice: Society of Clinical Psychiatrists 1 July 1997 HP to PGW 10 July 1997 PGW to HP 11 11 97 PGW to KG (LORD
CHANCELLOR'S
DEPARTMENT Selbourne House) 16 3 98 HARB to PGW 26 3 98 PGW to CL, MHRT (c to HARB, LCD) 3 April 1998 HARB (Judicial Appointments
Division 2)
to PGW 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 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) 4 June 1998 ZM to PGW 12 June 1998 PGW to ZM 22 June ZM to PGW 16th July 1998 PGW to NRO (LCD) 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 1 October 1998 JS (LCD) to PGW 12 October 1998 PGW to JS 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 earlier. 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 likely 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,S. 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 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 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 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 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 [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'! 12th February 1999
PGW to JS Will I - - be given the details of any complaints procedure proposed and - - finally accepted, please? (There are others too, MHRT 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) 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 Note: The www.open.gov.uk/ website has latterly been replaced by http://www.direct.gov.uk/!! 20 April 1999 GH to PGW 23 April 99 PGW to GH 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 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 21 July 1999 GH to PGW LORD CHANCELLOR'S
DEPARTMENT - - 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. - - 22 June 2000 NR to PGW 17 October 2000 Copy letter JK (Parliamentary Secretary, LCD) to NR
(MP), c. to PGW & SCP 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 - - 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 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 16 August 2002 KT to PGW Selbome House 54-60 Victoria Street 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`: REPLIES NEVER FORTHCOMING ! 12 November 2002 MTH, President of Society of Clinical Psychiatrists to The Lord Chancellor 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. We still hope you will see your way to a reconsideration of his case. FROM THE RIGHT HONOURABLE THE LORD IRVINE
OF LAIRG 13 February 2003 KT to PGW 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 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 also asked us to confirm that our correspondence, whether by post or by e-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 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). - - 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 31 October 2003 Dear Charlie Re: Dr Peter Woolf 4th January 2004 Reply 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) 27 January 2004 (PLH to PGW)
[After this from my MP, and given also the unhelpful, evasive responses to the Society of Clinical Psychiatrists' three submissions to the Lord Chancellor (2002-2003), the Society's officers reluctantly took an understandable formal decision that they too had reached "the end of the road" on this case and therefore could not and would not do any more. They decisded that theirtime and efforts should instead be devoted to younger NHS doctors suffering suspension from full time employment. 10 February 2004 (PGW to PLH, DCA) 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 ? 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. * Mistakes having been made, why has it been so difficult to get a
genuine enquiry into them? - - Daily Bible Study:
Daniel 6:1-23 [abbreviated] 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] 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 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 - - 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 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 8 March 2006 KH (The Information
Commissioner,
Customer Services Officer) to PGW - - 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? 23 May 2006 RS (DCA) to PGW 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? 28th July 1997 HP to PGW I am not prepared to let you have a copy of my letter to the Lord Chancellor's Department. You are, however, well aware with my views that your behaviour and attitudes are inconsistent with your role as a medical member of the Mental Health review Tribunal. APPENDIX 2 - READERS' OBSERVATIONS 8.- - All power to your elbow. Sorry to hear that you are STILL being ignored/messed around - - absolutely par for the bureaucratic course! I read the report of your own incredibly frustrating journey through/against officialdom, and can have huge sympathy, having seen similar evasion/lack of responsibility/buck passing/unmeant apologies (in the hope that you go away)/incompetence and so on in more than a few cases. When someone doesn't toe the line, everything can be thrown at him, often by people who are alarmingly unaccountable for their actions and sometimes are rather uninformed about the detail of the subject, but can shelter behind the name of a senior political figure who can take ultimate responsibility for corporate actions, knowing that the government have unlimited funds and huge powers to maintain their position. It reads to an observer just like Sir Humphrey. Delay, obfuscate, lose, delay, refer to previous matters, delay more, change personnel, apologise for delays - but do nothing of substance except when really backed into a corner. The civil service has turned defending the indefensible into a fine art indeed. [RK, 3/2010] 7. - - I have just read the long and detailed sequence of failures of those in authority - - This a truly sad example of power misused by people with forceful characters but few principles. Each one of us has to keep hammering away at evil and you have done your bit! (C B-C, retired Consultant Physician, 2/2010) 6. Dear Dr Woolf: - - Your case has the familiar characterisation of
(1) Lack of disclosure of the reasons for your dismissal
(2) Lack of right of appeal
(3) Failure to attribute changes in procedures to the whistleblower.
Only the most empathetic reader will be able to connect all the sections and the correspondence (and) the average reader to see the implications of the case to other cases and other situations - - it would be very worthwhile to explore why a Lord Chancellor responds in the way he does; why judges are unaccountable; how the whistleblowers adjust to their inversion, and why bystanders want the whistleblower to move on, without redressing the wrong. 5. The problems facing whistleblowers seem to be universal and international in scope. I have problems even understanding the US system of "justice" which has turned out to be more complicated than I could have ever imagined. I find the UK system rather unresponsive and confusing to understand... [JP, USA, June 2009] 4. I admire your determination to continue to fight on. You are very able in that respect. Fighting to achieve justice is not always successful but is always necesary and worth the effort regardless of the outcome. (LFL Forensic Psychological Consultant) 3. Comment from an experienced Mental Health Tribunal colleague: Some of us at the time tried to encourage HP (Regional Chair) to be more flexible but the position had become entrenched and he would not be moved. A suspension followed by termination of a successful career is very wounding. Once a decision is made it is virtually impossible to get it changed. It was unjust not to have an open independent review.* 2. - - Your detailed article shows clearly and concisely that you were treated shabbily and there was, in fact, nowhere that your voice could be heard or your personal views considered, which would have eliminated the high-handed action that was unfairly adopted - - You have put a great deal of work into the exercise and I admire you for all your efforts - -... (response by a highly respected MHRT President and former Regional Chairman) APPENDIX 3 - INTERNATIONAL LINKS Medical Whistleblower (USA) - an organization dedicated to advocacy and emotional support for those who have bravely stepped forward to "Tell Truth to Power": http://www.opednews.com/articles/Support-Medical-Whistleblo-by-MedicalWhistleblow-080923-5.html Invitation to National Whistleblower Assembly March 8-11, 2009, Washington DC - "Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known." (President Obama, January 20, 2009) Truth Feeds (USA): This article "Whistleblower to vexatious correspondent" examines abuse of power, punishments without crimes, and the prevalent secrecy in some UK government departments. Questioning what proved to be an unappealable decision revealed that the Lord Chancellor has a statutory obligation to defend the judiciary. Withholding information remained axiomatic in dealings with his Department. Suppression of dissent (Australia) - a site founded on the assumption that openness and dialogue should be fostered to challenge unaccountable power: "Whistleblower to vexatious correspondent" tells of Dr Woolf's experiences of a complaint backfiring against the complainer, with unjust suspensions converted to dismissal and loss of main employment, all without a proper meeting with an opportunity to voice his concerns freely. http://www.uow.edu.au/arts/sts/bmartin/dissent/documents/#health
POSTSCRIPT This paper had evolved over a whole decade - one during which the face of psychiatry in Britain, and its management, was continually changing - and it has been brought to the attention of American "whistleblowers", who are holding a National Congress in September 2009. The risks in our country for doctors and health workers who speak out have not lessened and whistleblowing for the necessary public good is still savagely punished: "Medical Whistleblowers are competent and capable professionals who courageously risk their livelihoods when they come forward in the name of transparency and openness" - - one petty complaint put GP in disciplinary agony for seven years - - 'Whistleblower' nurse struck off over Panorama film - - Whistleblowers should be cherished, not crucified My journalistic strategy, to support arguments with hyperlinks to quotations from the current press, was developed in this paper - newly, I believed? It resulted from the fortuitous coming together of several circumstances, crucially flowing from the premature death of the universally admired Chairman James Cooke, whose fatal illness had become manifest during a hearing at which his fellow panel members happened to be myself and my co-founder of the MHRT Members' Newsletter. This post-script to a paper which has met a more positive reception and dissemination abroad (USA and Australia) than at home, summarises what has been learnt in the light of a multiplicity of relevant disclosures in the media, and from publications through an increasing international body of Whistleblowers organisations, whose world-wide experiences are shared on the Internet. One recalls now incidents which, for discretion, were not recounted in earlier published papers about doctors and the Mental Health Review Tribunal. Some of the retired judges expected equivalent deference to that they had been used to in their Courts and found their equality in a tribunal of three hard to stomach. Judge Palmer had confided to me how, as a new Regional Chairman, he had found presiding over the hastily convened S2 assessment hearings, often without a complete set of reports to study (as he was accustomed to in Court) problematic. Once, sitting with me and the Editor of the Members' Journal in his more familiar context of a S.41 "restricted" hearing, he was so opposed to the removal of Home Office supervision of a particular female applicant (who had long been enjoying leading a model life under supervision back in the community) that he prolonged the decision making discussion inordinately, seeking unsuccessfuly to overturn the majority view reached, and firmly maintained, by the lay member and myself. A fortnight afterwards he found an opportunity to impose my second suspension... I was reminded how, in earlier years, a similar disagreement when a tribunal panel failed to reach unanimity had an equally notorious presiding Judge so infuriated by a majority discharge decision against his own view that he made the rest of us leave the room whilst he drafted the Reasons for the Decision as required - and then drove off at high speed in temper... judges too are human.
"Alice in Wonderland" stuff - institutionalised secrecy There were inordinate delays in responding to my complaint; eventually the LCD even wrote that they'd been awaiting my permission (never requested) for the Judge to see my letter of complaint ! I had assumed that would happen automatically right away... Contrariwise, Judge Palmer in turn said it had been up to the Lord Chancellor whether I might see what he'd written about me - and too, that he had shredded all his MHT papers after his own appointment was terminated... This is all "Alice in Wonderland" stuff. Institutionalised secrecy, maintained against all reason in the context of purported Open Government, has been a running theme emerging in the development of my narrative throughout a decade. No statistics have been released about the actual functioning of that MHRT Complaints Procedure, not even confirmation whether any complaints from medical members had been received and processed since mine? May 2009: A series of attempts to renew interest and concern via my MP Nick Raysford were given very short shrift: 3 12 08: I have discussed with Nick and he sees no point in taking the matter further, for the reasons I explained earlier. Alex Grant, Research Assistant to Nick Raynsford MP. 15 12 08: As this has already been raised with two Lord Chancellors (Lord Irvine and Charlie Falconer) Nick is still of the view that it is fruitless to reopen it. 11 5 09: Dear Alex Grant: The dreadful publicity about the so-open-to-abuse expenses system, which has so thoroughly undermined public confidence in government and UK politicians, prompts me to write again - - My representations have all been about denial of transparency ad absurdum, relying on obscure exemption clauses (e.g. "I therefore refuse your request under sect. 8 of the non-statutary employment, public appointments and honours Code") - - Whistleblowers routinely lose their jobs by way of retaliation, a situation which demands sustained action. Surely now, with so much public concern, it is an opportune time to involve Jack Straw in his capacity as Minister for Justice - - 20 5 09: Dear Mr Woolf - - As previously advised, Nick Raynsford MP does not think it is appropriate or possible to reopen the matters you have written about given the passage of time that has elapsed. 22 5 09 PGW to A G - - The "passage of time" is now surely counterbalanced, indeed trumped, by the latest government revelations about the flawed and devious expenses system - - We have all learnt that the defence of "it's covered by the rules" is not enough to over-ride clear principles of fairness and justice. Why should answers to questions have been repeatedly ignored and refused - because of exclusion clauses in little known documents? If my concerns are thought not relevant to our Minister of Justice, to whom then should one turn? - - 16 6 09 PGW to M.P Nick Raynsford: what I still hope for is a response to my substantive communications about wide ranging government secrecy, apparent abuse of power, and withholding of information (as highlighted in my case well before the expenses row). AG to PGW 13/7/09 Request for reasoned response to questions I am sorry that, for the reasons I have already explained, we cannot reopen this matter, and this correspondance has to be closed. etc etc - Further correspondence with my M.P. remained formally acknowledged but unanswered...
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mentioning "other matters raised" which remain undisclosed 
