Exclusion from Work in the NHS [A Guide for Doctors]

How to Challenge an Exclusion from the NHS

How to Challenge an NHS Exclusion from Work

NHS Trusts do not always balance the interests of a doctor with the wide interests of the public and the Trust, when excluding doctors from work. Trusts have exclusion policies that they must work to when determining what steps to take against a doctor. Under such policies, exclusions must be reviewed every few weeks, and a fresh decision made about whether to continue with the exclusion, lift the exclusion, or impose restrictions.

The longer a doctor is out of work the greater the risk of becoming deskilled. Knowledge fades from lack of use, many doctors say. The impact on the NHS is significant. Even the courts haver criticised the NHS for jumping too quickly to exclude. See, for example, an illustration of this on our page: When Doctors Get it Wrong, which sets out the (2012) Court of Appeal’s criticism of a Trust that excluded a member of nursing staff, even though the concerns were of a somewhat serious nature. The fact that the Trust additionally involved the police also came in for criticism as well. Per A Crawford and Anor v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138

In essence, the Court of Appeal felt that some NHS Trusts move too quickly to exclude, rather than weighing all of the probable evidence and risks of remaining at work, at an early stage.

See also: Kamath v Blackpool Teaching Hospitals NHS Foundation Trust [2021] EWHC 2811 (QB) at paras 71-72:

71. The lawfulness of the suspension or exclusion of an employee is in principle determined by the implied term of trust and confidence which is implied into every contract of employment; namely that neither party shall without reasonable and proper cause conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the parties.

72. An act of [exclusion] by an employer can constitute a breach of the implied term where, by itself or in combination with other acts or omissions it (i) destroys or seriously damages the relationship of trust and confidence and (ii) is without reasonable and proper cause : London Borough of Lambeth v Agoreyo [2019] EWCA Civ 322, following Mahmud v BCCI [1997] AC 20.

(October 2021)

Exclusions are intended to be a short-term temporary measure, enabling a Trust to investigate concerns. Regrettably, exclusions have in some cases been put in place. Some Trusts struggle to resolve issues due to the refusal of other doctors to work with the excluded doctor in the future, so causing an unpleasant tension and a long-term gardening situation, where the public purse pays the doctor’s salary, sometimes with no solution on the horizon. In such circumstance, DDS has know some Trusts to renege on pay agreements, and attempt to recover salary payments, despite being the employing organisation with the power to lift the exclusion at any time.

An immediate exclusion will be imposed at short notice where serious concerns come to the attention of a Trust. Such exclusions are reviewed every 4 weeks. Where the police are investigating a doctor, the Trust investigation will usually be put on hold until either no criminal charges are brought, or a charge is brought. In some instances, if the police tip off the NHS Trust that there is very strong evidence of a serious crime having been committed a Trust might move to instantly dismiss for gross misconduct. One example DDS can cite is a consultant paediatrician who the police were investigating for downloading of illegal images. The Trust dismissed the doctor without notice. They did not even move to an immediate exclusion.

An immediate exclusion is usually put in place where there is evidence of wrongdoing, by act or omission, even when the Trust is not in a position to make a formal allegation. Some investigations lead to findings that the doctor concerned is not at fault and the exclusion is lifted, so enabling the doctor to return to practice. The reasons for the exclusion should not generally have been disclosed to colleagues and in many situations colleagues will be unaware of why the doctor was absent. In other cases, colleagues may be fully aware leading to a rather uncomfortable reintegration. Many doctors who are excluded feel humiliated by the experience.

Exclusions have been put in place by Trusts where doctors have been alleged to have committed domestic violence, or have committed a dishonest act (including fraud), inappropriately touched or harassed a colleague, or acted wrongly toward patients, and where doctors have made serious clinical error or competence and safe practice is doubted. This list is not exhaustive.

Where there are competence concerns, Trusts will liaise with the Practitioner Performance Advice (PPA) service and together formulate a plan of remediation. Doctors might then return while working to restrictions, so as to complete the programme of remediation. Supervision may be a requirement, and monitoring of certain procedures might be required to be able to sign off the doctor as competence, so as to lift the restrictions.

Doctors who are excluded should ensure that they do their best to keep their skills and knowledge up to date, so that they can justify their return when the exclusion is lifted. Some exclusions are not lifted until after a disciplinary hearing has been held, to resolve conflicts of evidence, and impose a sanction where necessary. In some instances, a Trust will require a doctor to be assessed by occupational health prior to their return to work.

Exclusions are open to challenge but the process of doing so is not a simple or inexpensive one. The MHPS framework is often the starting point for looking at whether the process is fair. Any local disciplinary process must be fair. Look at the Trust’s MHPS and disciplinary policies to understand the process the Trust should be following. Terms of reference should be compiled at an early stage, so that any investigation is not delayed. Any evidence obtain in an SUI or SI fact finding process or root cause analysis will also be relevant to the shape of the package that will be put in place to support the doctor under scrutiny.

In some instances, the Trust might be perceived to be acting in a bloody-minded way, especially if certain personalities are having an impact on the process. A doctor might raise a grievance in such circumstances but they will need to provide some evidence to enable the NHS to investigate matters. Correspondence, while helpful in some cases, can become attritional and ineffective, thereby requiring a different tack.

A doctor who has been unfairly treated, in circumstances where a Trust has not followed its own policies, might be able to lodge a claim by way of employment tribunal proceedings, if they have standing. A doctor may also be able to sue in contract (pursuant to an alleged breach of the trust and confidence obligation on the part of the employer; or a breach of the doctor’s terms and conditions of employment), as the MHPS process has been incorporated into doctors’ contracts, and Trusts should act fairly in any event. There is usually a local ‘appeal’ procedure at Trust level, which should be explored and exhausted in many cases before a doctor takes their concerns to an employment tribunal or civil court. In some instances, a doctor might sue in contract to put in place a prohibition on a disciplinary hearing taking place (by way of injunction), if MHPS processes have not been followed. Case law holds, however, that not all cases are required to go through MPHS procedures.

It may be possible to argue in a clivil court that exclusion” from work is unlawful. A doctor might also seek an injunction that would required the employing Trust to enable the doctor to return to work and resume their duties. A period of support and training might need to be agreed by the doctor, to enable this to happen.

The following is a typical process following exclusion:-

  • Exclusion and 4 Week Reviews
  • Investigation of Concerns – Terms of Reference
  • Negotiation
  • Occupational Assessment
  • PPA MHPS Assessment / Guidance
  • Planned Return to Work or Disciplinary Process
  • Dismissal or Ongoing Monitoring at Work with Review
  • Resolution

As can be seen from the above sketch, there is a lot more to exclusion processes than might be understood by doctors going through the process for the first time. This article is a mere snapshot and each individual doctor’s case will likely have variables that require detailed analysis on potential remedies.

Case Law on Exclusions

In Gupta v Northampton Hospital NHS Trust [2021] EWHC 965 (QB) the High court declined to give relief (by way of injunction) to a doctor who (a) sought to lift an exclusion from work, and (b) an order that would prohibit their employer from informing “private work providers and other employers”. The alleged concerns raised against the doctor were stated as follows: “In January 2021, the claimant was notified that an investigation had commenced into concerns falling into three areas, namely irregularities around payments for additional hours, the abuse of position to procure private patients from his NHS practice and conducting private work during paid NHS time.” The court noted case law relating to contracts between doctors and hospitals (Jahangiri v St George’s University Hospitals NHS Foundation Trust [2018] Med LR 625), citing para 57(ii)(c) Nicklin J:

…to succeed on a claim for breach of contract, the claimant would have to demonstrate that the decision to suspend was unreasonable or irrational. That may mean that the Court should give rather more weight to a provisional assessment of the merits than would be necessary on a pure application of the ‘serious issue to be tried’ test.

The High Court went on to consider the serious issue to be tried test, and the balance of convenience test, as set out in American Cyanamid v Ethicon Ltd [1975] AC 396. At para 35 the court held:

As is now well established, suspension without reasonable grounds may amount to a breach of contract or breach of the implied term of trust and confidence.   …power should be exercised in good faith and rationally”; and [at para 43.]: “Having considered all the material before me and the parties’ competing submissions, I am not satisfied that there is a serious issue to be tried that the defendant was in breach of its contractual obligations in excluding the claimant.” 

The court found that the claimant had not made a convincing case that the decision to exclude (or report to other parties) was unreasonable or irrational. In light of that judgment, the balance of convenience test was not considered.

 (21 April 2021) 

For more information about challenging an exclusion from work or MHPS and disciplinary (and appeal) processes generally, call Doctors Defence Service on 0800 10 88 739