Human Rights Act 1998: developments
| Pages | 33-37 |
| DOI | https://doi.org/10.1108/14668203200300032 |
| Date | 01 December 2003 |
| Published date | 01 December 2003 |
| Author | Alison Brammer |
| Subject Matter | Health & social care,Sociology |
Legal column
The Journal of Adult Protection Volume 5 Issue 4 • December 2003 © Pavilion Publishing (Brighton) Limited 33
This column outlines some recent caselaw decisions affecting
vulnerable adults, where rights and freedoms within the
Human Rights Act 1998 have been argued.
R (Beeson) v Dorset County Council. CA 18 December 2002
This case began as a judicial review of a local authority
decision that an individual had deprived himself of his
property before entering residential care. It was decided
initially that the local authority complaints procedure panel,
which comprised two councillors and one independent
member, was not sufficiently independent and impartial for
the purposes of article 6 (1) of the European Convention on
Human Rights.
On appeal, the Court of Appeal stated that the real
question was whether the addition of judicial review to the
process satisfied the article 6 (1) standard. It found that if
there was no substantive reason to question the integrity of
the panel decision, whatever its appearance might suggest, the
added safeguard of judicial review would usually satisfy the
article 6 standard.
This principle is likely to apply across the range of
complaints procedure panels, whether in relation to those
established under the Children Act 1989 or the National Health
Service and Community Care Act 1990. The argument advanced
by the Court of Appeal is that in any case where there is a
concern that the panel was not sufficiently independent or
impartial, the fact that the decision can be reviewed by judicial
review in the High Court is sufficient to provide that element
of the article 6 requirement. Looked at overall this may be so.
However, it pays insufficient regard to the ‘bringing rights
home’ philosophy which underpins the Human Rights Act
1998. It is expensive and time consuming for a claimant to
take a case to judicial review and this may prove to be a
deterrent for some. The preferable course would have been to
ensure absolute and transparent independence and
impartiality at the panel stage by extending the requirement
for independence to at least two members.
:
developments Alison Brammer
J/194/11/03JAP5.4DecInsides 8/12/03 10:56 am Page 33
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