Tribunal Hearing Research Articles

The Administrative Tribunal of the European Stability Mechanism: ESMAT at Ten

The Administrative Tribunal of the European Stability Mechanism (ESMAT) is an international administrative tribunal hearing appeals brought by current and former staff of the European Stability Mechanism (ESM), which is an international organization. Sitting in Luxembourg, though separate to the European Union (EU) and outside the EU legal order, the Tribunal has its own Statute and Rules of Procedure to supplement the ESM Treaty. As ESMAT reaches the age of ten, and having delivered its first judgments, this articles probes ESMAT’s legal design and rulings to-date to determine the credibility of the international administrative tribunal in providing redress, as an internal justice regime in a standalone international organization. It finds that despite the preadolescent age of ESMAT, it is a well-designed international tribunal, established by law, and can provide the necessary judicial remedies to parties where necessary, given its applicable law.

A promise of listening: migrant justice and the London Permanent Peoples’ Tribunal

This article explores the Permanent Peoples’ Tribunal (PPT) hearing, ‘The hostile environment on trial’, which took place in London in 2018. When calling a gathering a ‘people’s tribunal’, certain kinds of listening and attention become possible, which are shaped by specific histories and contexts. The author considers the kinds of listening that took place during the London PPT and what changed as a result. She argues that the legal framing that comes with calling a gathering a ‘tribunal’ both compels and excludes, and the politics of listening for migrant justice within such a space is laden with imperial pitfalls and power relations that must continuously be worked through. Instead of a legal remedy, what results is a social relation – an ‘Us’ created through the mutual effort of organising and participating in the tribunal that can open up different understandings of migrant justice and its connection to wider struggles.

Junior doctors and fitness to practice procedures in the UK: analysis of factors prompting tribunal referrals and outcomes

Purpose of the studyTo ascertain factors influencing referral to, and outcomes from medical tribunals for junior doctors with less than 7 years of postgraduate training.Study designA mixed methods analysis of...

Character failings in the surgeon fallen from grace: a thematic analysis of disciplinary hearings against surgeons 2016–2020

Surgeons are commonly evaluated with respect to outcomes and adherence to rules and regulations, rather than a true holistic examination of the character of the surgeon in question. We sought...

Das Unterweltverhör. Metamediale Überlegungen in modernen Nekrodialogen von Bertolt Brecht und Walter Jens

From the end of the nineteenth century on, the spiritist desire to communicate with the dead has led artists to experiment with different technical media, such as photography, radio, and film. In this article, I aim to interpret the ways in which technical conditions of the media modify modern necrodialogues. I will argue that the intertextual dialogue between Brecht's radioplay Das Verhör des Lukullus and Jens' text B. in der Unterwelt and their use of the ancient motif of the tribunal hearing generate a self-reflexive and critical discussion about concepts of mediality and receptivity.

Head of charity founded by fertility pioneer claims unfair dismissal after whistleblowing.

The former chief executive of a medical research charity founded by the IVF pioneer Robert Winston is accusing him and the charity of using a “sham” redundancy to sack her for whistleblowing about a threatened breach of a legal obligation.1 Dyan Sterling, who was made redundant in August from her job at the Genesis Research Trust, has taken Winston and the trust to the central London employment tribunal. Sterling asked the tribunal for interim relief—an order requiring the trust to keep her in her employment until a full hearing of the case. This requires a judge to predict what a tribunal hearing the case would be “likely” to decide at the end of the hearing. The trust, founded by …

Decolonizing Trauma Theory by Way of Housing Disrepair: The Case of Santa Teresa, Australia

What happens if, instead of the Holocaust being the baseline event for understanding cultural trauma, settler colonial examples are recruited to decolonize cultural trauma framings? Here, a partly successful tribunal hearing lodged by Arrernte residents in Santa Teresa, central Australia, over neglected repair and maintenance issues, shows how settler state deployments of the traumatic and the traumatizing also pivot on event models. Such containment tactics enable more perennial forms of cultural trauma to thrive in insidious and distributed ways. This litigation case study highlights the need to decolonize, rather than reproduce, countersovereignty acts of cultural trauma in our conceptual models.

Emergency mental health legislation in response to the Covid-19 (Coronavirus) pandemic in Ireland: Urgency, necessity and proportionality

Many countries have enacted, or are in the process of enacting, emergency mental health legislation in response to the global pandemic of Covid-19 (coronavirus). In Ireland, the Emergency Measures in the Public Interest (Covid-19) Act, 2020 amends the Mental Health Act 2001 to permit the Mental Health Commission to request an independent psychiatric report about an involuntary patient from any consultant psychiatrist who is not treating the patient (and not just those on its designated panel). This independent examination may occur ‘in person’, ‘by other appropriate means’, or even, ‘due to the exigencies of the public health emergency’, not occur at all, once this is explained in the resultant report. The 2020 Act acknowledges that ‘the exigencies of the public health emergency’ might hamper the independent psychiatrist's work and requires a written report from the patient's treating psychiatrist ‘no earlier than the day before’ the tribunal, in lieu of the psychiatrist physically attending a tribunal hearing, although, if possible, they will attend (i.e. phone in to) a tribunal held by conference call. The 2020 Act permits the Mental Health Commission to, if necessary, appoint tribunals ‘consisting of one member who shall be a practising barrister or solicitor’. Such a tribunal shall, if possible, consult with a consultant psychiatrist if the reports from the independent psychiatrist and treating psychiatrist conflict or if it is otherwise ‘necessary in the interest of the patient’. A tribunal can extend an involuntary order by a second period of 14 days ‘of its own motion if the tribunal, having due regard to the interest of the patient, is satisfied that it is necessary’. Tribunals for current involuntary patients will be prioritised over retrospective tribunals for discharged patients; a tribunal can direct a witness to provide ‘a written statement’ rather than attending; and the patient can make written representation to the tribunal instead of physically attending a tribunal hearing, although they may attend (i.e. phone in to) a tribunal held by conference call. Psycho-surgery for involuntary patients is banned. While it is clear that revisions are urgent and necessary in light of Covid-19, the proportionality of these changes will depend on how, and the extent to which, they are used in practice. With good communication, efficient team-working and close adherence to professional codes of practice and ethics, it is hoped that these amendments will result in a review system that is as reasonable, robust and reassuring as the current, highly unusual circumstances permit.

Reframing financial abuse of parishioners: an analysis of a Church of England disciplinary tribunal hearing regarding Rev. Karl Wray

PurposeTraditional understandings of financial abuse are limited to particular situations and people who have close access to vulnerable adults. This paper aims to add to a debate that intends to push the boundaries of the understanding of financial abuse further. In particular, it seeks to add to the understanding of what financial abuse might look like and who the perpetrators of such abuse can be. In so doing, it seeks to offer greater protection to the vulnerable.Design/methodology/approachFocusing on exploring the minutes of Church of England disciplinary tribunals, held to provide accountability for clergy, this paper considers how the church seeks to represent and construct the victims of financial abuse.FindingsThe paper identifies that the victims of financial abuse are whitewashed out of the tribunal minutes and discovers that the disciplinary tribunal is solely concerned with the financial loss afforded by the church. This discovery offers a new context in which it is possible to explore the competing interest in, what has been regarded as, the “legitimate assets” of older parishioners. It provides an example of how organisations and individuals compete for them.Originality/valueThis paper adds to the debate about the everyday nature of financial abuse and when and where it might take place. It provides an opportunity to reconsider potential offenders and the means by which abuse might be reduced. In exploring how the financial abuse of potentially vulnerable people can be reframed so that it is hidden by process and procedure, this paper offers an insight into the means by which it is possible to promote transparency and greater accountability.

Streetlaw – assisting access to justice in the Employment Tribunal: A practice report

<p>If you have not yet read the judgment of Lord Reed in the Supreme Court decision of Unison v The Lord Chancellor, please allow yourself a little time over the coming weeks to enjoy a clear and evidence-based statement on access to justice in the employment tribunals of England and Wales. The case was brought by Unison, the UK public workers union, and challenged the introduction in July 2013 of the requirement to pay a fee to lodge an employment tribunal claim. Having reviewed some of the key common law authorities and quoting from the Magna Carta and Donoghue v Stevenson no less, Lord Reed concluded that the fee regime was unlawful “because it has the effect of preventing access to justice”. This landmark decision in July 2017 brought an immediate end to the fee regime. Time will tell whether the UK Government will attempt another fee scheme in the future, but there are other more pressing issues occupying Whitehall at the moment.</p><p><br />The four-year fee regime and the Unison challenge brought access to justice in employment tribunals very much into the public eye. Other barriers to access were also widely discussed and reported, including the lack of legal aid and legal representation for claimants in employment law matters. A number of law clinics and pro bono schemes operate to give guidance and advice to the public, in addition to the essential work of ACAS (the Advisory, Conciliation and Arbitration Service). The purpose of this paper is to share with you my experience of a university student Streetlaw project at the Cardiff Employment Tribunal providing guidance to unrepresented claimants about tribunal practice and procedure.</p><p><br />The concept of Streetlaw is familiar to readers of this Journal as a form of public legal education aimed at helping members of the public to understand their rights. It is also frequently referred to as “legal literacy”, the importance of which Richard Grimes explains in a previous edition of this Journal. The key aim of our Streetlaw project is to educate potential claimants about what to expect in the run up to their employment tribunal hearing and what happens on the day. As I shall explain, however, there are a number of secondary aims and several other beneficial outcomes.</p>

Does the urinary concentration of an inhaled beta 2 agonist always reflect the inhaled dose and method of administration?

AbstractThe urinary threshold of 1000 ng/mL for salbutamol was established by the International Olympic Committee (IOC) in 2001 following a study that was not undertaken for that purpose. At least 25 athletes have exceeded this concentration and some after inhaling no more than the permitted daily maximum dose of 1600 μg. However, there is concern that some providing expert evidence and tribunal members hearing such cases are unaware of the occasional unpredictability of the pharmacokinetics of beta‐2 agonists. The World Anti‐Doping Agency's (WADA's) change from 1 March 2018 to allow correction of urinary specific gravity (SG) down to 1.020 for prohibited substances with a urinary threshold is a major advance and will assist in some instances. However, future cases are anticipated to occur when athletes unexpectedly exceed the urinary threshold for salbutamol after inhaling no more than the allowable dose and within WADA's stated time frame. They will then be required to appear before doping tribunals. The rapidity by which salbutamol is inhaled can influence the resultant urinary concentration and is yet to be addressed adequately in WADA's 2019 Prohibited List. The list's recommended pharmacokinetic study fails to replicate the circumstances that prevailed when the athlete was competing and the adverse analytical finding (AAF) occurred. Tribunals, and experts who advise them, need to be cognizant that the urinary concentration of salbutamol does not invariably reflect the inhaled dose and that a high urinary salbutamol concentration is not always ipso facto evidence of super‐dosing with inhaled salbutamol.

An Analysis of Justice Dispensation System in India with Special Reference to Under Trial Prisoners

Justice dispensation system of India is very regressive and slow. Undoubtedly, there are different avenues of justice dispensation system from administrative and other tribunal hearing to different types of forums of judiciary like lower courts, High Court and Supreme Court. These institutions have been developed for fair hearing but too much time is taken for delivering justice which in itself, can be termed as injustice. In this article, the researchers aim to highlight various hindrances of justice dispensation system with practicable suggestive measures. This paper describes the various obstacles in the dispensation of justice in India and provides a detailed account of the recommendation of Law Commission of India for bail regarding better dispensation of justice. It is the constitutional right of every person to get timely justice. The researchers attempt to provide Constitutional, legislative and judicial framework of justice dispensation system in India. The Researchers attempt to elaborate the chief components of effective justice dispensation system which includes independence of judiciary, responsible governance and authorities, speedy and affordable justice, social awareness of attaining justice and strict observance of political ethics by legislature.

Does the doctrine of double effect apply to the prescription of barbiturates? Syme vs the Medical Board of Australia

The doctrine of double effect (DDE) is a principle of crucial importance in law and medicine. In medicine, the principle is generally accepted to apply in cases where the treatment...

Forensic Legacy of the Khmer Rouge: The Cambodian Genocide.

The people of Cambodia were subjected to widespread forced migration and labor, disease, starvation, torture, murder, and indeed, genocide over a period of four years during the control of the country by Pol Pot and the Khmer Rouge in the 1970s. While the country awaits some form of justice from the hybrid tribunal hearing cases against a few of the perpetrators of these crimes, it has undertaken to memorialize the dead in visible monuments in order that the people remember and never allow it to happen again. This paper outlines the few forensic investigations which have been undertaken on the remains of the deceased from this period in Cambodia's history. The current status of the legal proceedings and the current death investigation system in Cambodia are also presented. There is a wealth of objective forensic information that can be gathered from analyzing the remains that have been disturbed and placed in monuments (stupas), and also in the undisturbed graves across the country. This information cannot only assist in any legal proceedings, but can aide in training medicolegal experts in Cambodia for the future good of the country and its rule of law.

Eu Law Constraints on Intra-eu Investment Arbitration?

This article questions whether the law of the European Union (eu) can impose jurisdictional constraints on so-called intra-eu investment arbitration proceedings. Would an arbitral tribunal hearing an intra-eu case under either a bilateral investment treaty (bit) or under the Energy Charter Treaty (ect) have to declare itself incompetent to conduct the case proceedings owing to the operation of eu law? This article subjects that proposition to criticism, finding that, for a number of reasons, connected either with the drafting of the bit or the ect or the operation of general principles of international law, it does not withstand scrutiny. An arbitral tribunal seized of a treaty claim under a bit or the ect cannot rely on eu law to negate rights expressly granted under the instrument providing for its jurisdiction.

Patients with learning disabilities who lack capacity detained under the Mental Health Act in the UK: A case study

Accessible Summary In England and Wales, some people with learning disabilities may have to be detained under the Mental Health Act 2007 as patients in a hospital for a period of assessment and or treatment if they are suffering from a mental disorder, and it is for the interests of their own health and safety, or to protect others. Patients who are detained under Section 2 of the Mental Health Act 2007 can apply to the Mental Health Tribunal to decide whether they should be detained in a psychiatric hospital or be discharged. The Mental Health Tribunal has the power to discharge these patients after a hearing. Patients who lack capacity to apply to the tribunal are unable to have a tribunal hearing. The European Court has ruled that this is unfair to these patients. There needs to be a system in place to ensure that these patients get a tribunal hearing. AbstractBackgroundIn the UK, the Mental Health Tribunal is a long‐established safeguard for patients detained under the Mental Health Act. This gives such patients an effective appeal mechanism to ensure legal protection of their liberty. This act contains sections that allow for civil detention in the case of mental disorder. The right to apply to the tribunal against such detention is underpinned by the right to liberty under Article 5 of the European Convention of Human Rights (ECHR). Some patients with learning disabilities may lack capacity and the ability to challenge their detention.MethodThis article presents a case study of a woman with Down's syndrome and severe learning disabilities. Whilst this woman was detained under the Mental Health Act, she could have applied for a review of her detention to the Mental Health Tribunal within 14 days. She did not do so because she lacked capacity to instruct solicitors. Subsequently, as a result of appeal, the case proceeded through English and European judicial review.ResultsThe European Court of Human Rights, in the case of MH v UK (2013), has ruled that the appeals procedure for patients without capacity detained under Section 2 of the Mental Health Act is not compatible with Article 5(4) of the European Convention of Human Rights. The European Court has ruled that special procedural safeguards are required to enable this cohort of patients to exercise their rights guaranteed by Article 5(4).ConclusionsResponsible clinicians [treating consultant psychiatrists] need to ensure that all patients detained under section 2 of the Mental Health Act have an assessment of their capacity to apply to the tribunal. There need to be systems in place to alert hospital managers when a patient lacks capacity to apply for a tribunal. Hospital managers should request the Secretary of State to apply for a tribunal in these instances. Knowledge of this ruling is relevant to informing the practice of other interdisciplinary healthcare professionals working with such patients.

UNCITRAL Model Law: Composition of the Arbitration Tribunal Re-considering the Case upon Setting Aside of the Original Arbitration Award

In this article, the author analyses the question whether it is possible for the arbitrators, after their original award had been annulled, to sit on the arbitration tribunal hearing the case again, to reconsider the case, and to issue a second award in the same case in light of the UNCITRAL Model Law regulations. This question is addressed from two basic perspectives. The first one relates to arguments rooted in the functus officio principle, especially in reference to rectification and remission proceedings, as laid down in relevant regulations. The second perspective, meanwhile, encompasses the ethical principles and usages concerning appointment of arbitrators in international commercial arbitration, including the concept of prejudgment. In her conclusions, the author rejects a blanket prohibition on re-appointment of arbitrators, arguing that it does not duly account for all the nuances of the notion of impartiality in the context of actual practice.

Whistleblowing protection for agency locums clarified by legal ruling

Whistleblowing protection for agency workers, including locum doctors, has been clarified by a legal ruling that ensures that they have the same protection as employees, a legal expert has said. Tom Long, legal director at law firm Shakespeare Martineau, said that an appeal tribunal hearing involving an agency nurse working at University Hospital Bristol, had clarified the rules around whistleblowing …

Review: The other side of the Tūhoe raids

Kata, Alistar. (2015). The other side of the Tūhoe raids. Pacific Journalism Review, 21(2): 192-194. Review of The Price of Peace [documentary], directed by Kim Webby. English and Te Reo Māori. 2015, 87min. www.nziff.co.nz/2015/auckland/the-price-of-peace/Most New Zealanders will remember when Tūhoe activist Wairere Tame Iti shot the national flag, during a powhiri ceremony, at a Waitangi Tribunal Hearing in 2005. New Zealanders will also remember when Iti, along with three others, was tried and found guilty of firearms charges as part of what the media coined, the ‘Urewera Four’ (Gay, 2012) trial. The man with a full facial Tā moko is regarded throughout the mainstream media as somewhat of a rebel, and by the state as a ‘dangerous proto-terrorist intent on infecting New Zealand’ (Hill, 2012).

Exposing secrets: mental health tribunals held in public. An “ongoing media circus” or justified transparency?

PurposeThe purpose of this paper is to discuss and examine the implications of holding mental health tribunals in public.Design/methodology/approachThe paper discusses the functioning of tribunals, compares tribunals with other legal processes in the UK and elsewhere, and reviews the legal reasoning for holding tribunal hearings in public.FindingsThe first tribunal hearing has already been held in public and another public hearing is agreed. Public hearings should allow for greater transparency and scrutiny than has thus far been possible, and may change the behaviour of attendees.Originality/valuePublic tribunal hearings have not yet been widely discussed in the academic literature, yet are expected to have implications for all involved.