Dr Charles Tannock

Member of the European Parliament for London

Health tribunals vs appeal court

The Daily Telegraph - 4th May 2001

Sir

The Court of Appeal recently upheld an appeal by a Broadmoor patient convicted of manslaughter against a health tribunal's decision not to discharge him under the Mental Health Act.

It did so on the ground that the release conditions stipulated by Parliament were incompatible with the European Convention on Human Rights, because they put the burden of proof on the patient. This fundamentally misunderstands the process of assessment; a health tribunal simply attempts to ascertain the truth of whether every requirement is satisfied or not, without regard to the concept of burden of proof.

In my clinical experience as a consultant at a London teaching hospital, this is never raised as an issue in the determination of the validity of a detention order.

Health tribunals are not, of course, infallible, and patients have a right to ask courts to scrutinise the clinical judgment of the responsible medical officer. But Parliament has legislated in good faith to balance individual rights against those of the community in a way which is manifestly not arbitrary or unreasonable.

That balance has now been altered by his judgment to the detriment of both public safety and the well-being of the patient.

While allowing the appeal, the court also made (for only the second time) a declaration of incompatibility between the Act and the Convention. My understanding of the Human Rights Act (1998) is that, if a court issues a declaration of incompatibility, it is then for Parliament to determine whether or not to repeal the offending legislation; the court is not empowered effectively to overturn a statute by allowing an appeal simply because it believes that an incompatibility exists.

Human rights are obviously an important part of a healthy democracy, but the upholding of abstract rights should not lead to the undermining of the democratic process or accountability.

The phrase "Quis custodiet ipsos custodes" is developing increasing resonance. It may well be that the solution will be for senior members of the judiciary to have their appointments confirmed by Parliament, as with Supreme Court judges in America.

Dr Charles Tannock, MEP (Con)
Brussels