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:

 

Simple Misconduct

Gross Misconduct, in contrast, might include:

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)

MHPS Processes

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 [2009] 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”

Colbert v Royal United Hospitals Bath NHS Foundation Trust [2023] EWHC 1672 (KB) (July 2023)

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 [2003] UKHL 27 the House of Lords (now the Supreme Court) 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)

Disciplinary Hearings

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 should apply the balance of probabilities test to come to a reasonable belief about the facts. Any sanction must be proportionate to the facts, mitigation, and service of the employee. Even gross misconduct might not lead to dismissal if there has been a long and good service record, on the part of the employee.

An appeal process will lie from the disciplinary decision. And there is a time-limit of often only a few days. If an employee misses an appeal deadline, the employer is not obligated to consider an appeal.

Preparing for a Disciplinary Hearing (or Appeal)

When preparing for a disciplinary hearing, a doctor should think carefully about the evidence to be included. A doctor should not assume that their employer will call all relevant witnesses, without being requested to do so. A doctor should therefore make a prompt request for relevant witnesses to give evidence. Likewise, a doctor. should not assume that their employer will include all relevant documents. A doctor facing a disciplinary process will likely need to compile and submit in good time their own bundle of documents. They will also need to obtain statements from relevant factual and character witnesses and arrange for them to attend the disciplinary hearing.

Practising Privileges

Where a doctor holds practising privileges with a number of organisations, in many instances they will likely need to inform all of them of any disciplinary process that is being held, depending on the gravity of the concerns raised. A doctor owes a duty to such organisations, to enable them to take appropriate steps in the public interest and to protect patients, pursuant to the organisation’s own clinical governance protocols. Where a doctor is restricted in what they can do or is excluded from work, it is especially important to inform the other organisations where they have practising privileges, as this is a formal requirement of the code of conduct for doctors Good Medical Practice (GMP 2024, para 100):

Employment Tribunal (ET) Claims

A doctor may be able to lodge an Employment Tribunal or contract claim in some instances, but there are strict deadlines of (usually) three months from the date of dismissal, not the date of an appeal decision. While some claims require two years of continuous employment on the part of the claimant, some claims do not require it, particularly those claims relating to protected characteristics pursuant to the Equality Act.

Legal Assistance in Employer Disciplinary Matters

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 strict confidence on 0800 10 88 739

*where an employer recognises DDS