Doctors and Employer Level Disciplinary Investigations
Doctors Disciplinary Interviews with Employers – Legal Representation
Employers of doctors have responsibilities to investigate concerns raised about doctors, whether it relates to conduct in the workplace or conduct outside of the workplace. Investigations into conduct within the workplace can relate to a number of areas of potential concern, and some forms of misconduct will be expressly referred to in the employer’s disciplinary policies. Misconduct might be categorised as simple misconduct or gross misconduct. Simple conduct might include the following, which might also constitute gross misconduct, depending on the seriousness of the conduct:
- Attendance issues/Non-attendance
- Failure to follow reasonable instructions
- Failure to complete duties or meet standards set by national bodies
- Failure to comply with policies
- Unsatisfactory appearance relating to personal hygiene and/ or failure to wear a uniform or protective equipment provided by the employer
- Misuse of the employer’s IT systems, smart cards or telephones, including storing of confidential data and passwords
- Trading on the employer’s premises
- Gambling whilst on duty or the employer’s premises; or elsewhere with the employer’s assets
- Participating in unlawful industrial action
- Borrowing or attempting to borrow money from patients or clients or colleagues
- Bribery or corruption
- Behaving inappropriately when visiting a patient or client, including dishonesty
- Abuse of position held, abuse of trust
Gross Misconduct, in contrast, might include:
- Bribery and Money Laundering
- Theft or fraud, corruption
- Deliberate falsification or alteration of records
- Breach of confidence and data policies
- Assault or violence on anyone
- Sexually inappropriate conduct on anyone
- Professional misconduct
- Malicious damage
- Discrimination, bullying or harassment
- Drink and drug abuse
- Breach of copyright and patent rules
- Unauthorised access or disclosure of confidential information
- Abuse of a the employer’s or business partner’s computer system
- Negligence or Gross Negligence
- Installing unauthorised software onto the employer’s computer systems; hacking
- Bringing the Employer, or Health Authority or other organisation into disrepute
- Failure to disclose a medical (physical or mental health) condition which may put the Health and Safety of colleagues or patients at risk
- Improper interference in the award of contracts and/ or failure to comply with proper tendering processes
- Suppressing fraud referral or advising suspects that they are under investigation
- Failure to follow infection control or other health and safety procedures which could cause harm to others
- Failure to report suspected child or vulnerable adult abuse, or being involved in such abuse.
- Director’s subject to the Fit and Proper person’s requirements, who fail to comply
- Being made bankrupt, bringing the Trust, Regulators, or NHS into disrepute or anything that indicates to the Trust that the doctor is not of good character.
- Insubordination, Failure to follow instructions
- Harassment, Sexual Harassment
- Vexatious and dishonest complaints
- Bankruptcy, if impactful on role and reputation of the organisation
- Prevented by law from being a Director of a Company
- Demonstrating deep seated-attitudinal problems
- Committing Criminal Offences; non-disclosure of convictions
Investigations into Doctors’ Conduct
The employer must undertake a formal investigation into allegations that meet a certain level of seriousness. Petty misconduct might be dealt with by way of a verbal warning, without the need for any formal interview.
A doctor will usually be asked to attend a disciplinary interview, with notice, to explain their conduct. This is an opportunity to explain misunderstandings or innocence, or to make qualified admissions, or to deny the allegations in part or in their entirety. Early admissions in some situations can lead to better outcomes for doctors, particularly where they can also demonstrate good insight, a low risk of repetition, and show that they have taken remedial steps (where necessary) to overcome sub-optimal conduct.
Exclusion from Work
See our article: Exclusion from Work (in the NHS)
The Maintaining High Professionals Standards is frequently invoked as it is a contractually binding national agreement. Where a doctor is facing the MHPS process it is important to actively influence the investigation, so that all relevant evidence is considered. For more information about the MHPS process as it applies to disciplinary hearings, see our article: Maintaining High Professional Standards (MHPS) Law
Representation at Disciplinary Interviews
Doctors are usually entitled to be represented by medical defence organisations (such as Doctors Defence Service), unions or a friend. Depending on the seriousness of the allegations, the GMC might also be informed. If criminal conduct is alleged, the employer will often refer the matter to the police and pause their investigation until the criminal justice element has been concluded. Having good representation and advice is an important step for a doctor to take, when attending a disciplinary interview. Most employers now record the disciplinary interview, especially NHS employers. Such recordings should be preserved and copies disclosed to the doctor.
Kulkarni v Milton Keynes Hospital NHS Foundation Trust & Anor  EWCA Civ 789 (July 2009) – limits on lawyers acting at disciplinary processes, in most instances, save for where the lawyer works for a medical defence organisation.
Right to Interview Transcript and other Documents
Doctors who are interviewed should be sent a copy of the typed up interview transcript so that they can correct any inaccuracies, or provide clarification or further evidence (such as documents that might be relevant). A doctor can also request their employer to obtain documents that it would be fair tom obtain, subject to their relevance and availability.
Disciplinary processes should follow the employers policy, or, failing that, ACAS’s model policies, if the proceedings are to be fair. Any employer’s policy to be acceptable in law should usually, as a minimum, reflect the procedural fairness standards expected by ACAS.
Note, however, that the right does not cover all documents. See
Allegations – Personal or Professional?
The employer will determine the allegations but they must do so appropriately and the courts have the final decision. In some instances an employer will define misconduct as personal rather than professional but this must be properly determined. In Skidmore v Dartford & Gravesham NHS Trust  UKHL 27 the House of Lords determined that the employer should have categorised a doctor’s conduct as professional and not personal. At para 22: “It is in truth self evident that lies told by a doctor to a patient about important details of an operation can amount to professional conduct. After all in such a case the medical practitioner is professing to speak as a doctor about a matter covered by his medical skills. The argument to the contrary on behalf of the Authority must be rejected.” (May 2003)
If the employer is of the opinion that a disciplinary hearing should take place, to establish the facts and or to impose a sanction, the employer must disclose (usually) the relevant material for the doctor to know what the case is against them. In many instances, witnesses will be called but there are occasions when an employer might decline to call witnesses, or refuse to allow them to be questioned. In some rare instances, witnesses might be anonymised.
An employer must act fairly, and come to a reasonable belief about the facts. It might also use the balance of probabilities to come to its reasonable belief. Any sanction must be proportionate to the facts, mitigation, and service of the employee.
Doctors Defence Service advises and represents doctors in relation to disciplinary hearings* at NHS Trusts and in the private sectors and third sector. Contact us without obligation in struct confidence on 0800 10 88 739
*where an employer recognises DDS