Maintaining High Professional Standards (MHPS) Law
Doctors Defence Service advises doctors going through the Maintaining High Professional Standards (MHPS) in the Modern NHS disciplinary and investigatory processes, and challenges to the process.
The MHPS framework is somewhat cumbersome but it does set out procedures that should be followed in certain circumstances, where a doctor is underperforming. In essence, the framework deals with aspects of misconduct, incapability and poor performance among doctors and dentists. There is a fair amount of case law on the issue of its application and processes. In some cases, the MHPS process will not apply and the local employer disciplinary policy will apply instead.
Some Processes of Investigation Can Fall Outside of MHPS Process:
See by way of example: Jain v Manchester University NHS Foundation Trust [2018] EWHC 3016 (QB)
Exclusions:
When Trusts Get it Wrong:
See our Article: Wrongful Exclusions in the NHS – useful court of appeal commentary on the overuse of exclusions (formerly known as trust level suspensions), and inappropriate referrals to the police.
General Guidance on Exclusions:
Exclusion from Work, A Guide for Doctors
Is an exclusion amenable to Judicial Review?
With the NHS being a public authority, its decisions can be challenged in some instances by way of judicial review. In Gogay its was said, obiter, in relation to a suspension/exclusion by a local authority of a member of staff (para 50) that:
“In my view, the courts should be slow indeed to hold that a local authority does not have reasonable grounds such as will justify it in making further inquiries in a case such as this. Given that no infringement of legal rights is generally involved, the decision to hold such an investigation would normally only be challenged through judicial review. The court would be reluctant to grant such a remedy save in the most blatant case of arbitrary and unjustified inquiry.” per Hale, LJ (sitting in the Supreme Court) in Gogay v Hertfordshire County Council [2000] EWCA Civ 228 (July 2000)
Implied Trust and Confidence
Also in the case of Gogay, the Supreme Court held that:
“The implied term of confidence and trust
53. It is now well settled that there is a mutual obligation implied in every contract of employment, not, without reasonable and proper cause, to conduct oneself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. This requires an employer, in the words of Lord Nicholls of Birkenhead in Malik v BCCI [1998] AC 20, at p 35A and C,
‘. . . not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract implicitly envisages. . . . The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer’.
Lord Steyn emphasised, at p 53B, that the obligation applies ‘only where there is “no reasonable and proper cause” for the employer’s conduct, and then only if the conduct is calculated to destroy or seriously damage the relationship . . . ‘…
55. …The test is a severe one. The conduct must be such as to destroy or seriously damage the relationship. The conduct in this case was not only to suspend [exclude] the claimant, but to do so by means of a letter which stated that ‘the issue to be investigated is an allegation of sexual abuse made by a young person in our care.’ Sexual abuse is a very serious matter, doing untold damage to those who suffer it. To be accused of it is also a serious matter. To be told by one’s employer that one has been so accused is clearly calculated seriously to damage the relationship between employer and employee. The question is therefore whether there was ‘reasonable and proper cause’ to do this.
The rest of the judgment is worth reading because the Supreme Court is critical of the local authority for a “knee jerk” reaction, and a premature move to exclusion. The employee was held to be entitled to “something better than the ‘knee jerk’ reaction which occurred in this case”.
A Just Culture – Systemic Failures
See also the NHS flowchart for those managing concerns about doctors, called A Just Culture Guide. A fair process, avoiding singling out an individual, where possible, is encouraged. See also the overarching Just Culture guidance on treating doctors fairly, while ensuring that systemic issues that have contributed to any failing are properly understood, within the context of any investigation.
NHS Serious Incident (SI) Framework
See also the NHS’s Serious Incident Framework (2015), which will be further updated in 2022. What is a serious incident? In summary, the guidance states (pages 7 to 9):
“Serious Incidents include acts or omissions in care that result in: unexpected or avoidable death, unexpected or avoidable injury resulting in serious harm – including those where the injury required treatment to prevent death or serious harm, abuse, Never Events, incidents that prevent (or threaten to prevent) an organisation’s ability to continue to deliver an acceptable quality of healthcare services and incidents that cause widespread public concern resulting in a loss of confidence in healthcare services.”
“…Serious Incidents must be declared internally as soon as possible and immediate action must be taken to establish the facts, ensure the safety of the patient(s), other services users and staff, and to secure all relevant evidence to support further investigation.”
“…The recognised system-based method for conducting investigations, commonly known as Root Cause Analysis (RCA), should be applied for the investigation of Serious Incidents. This endorses three levels of investigation (for which templates and guidance are provided); 1) concise investigations -suited to less complex incidents which can be managed by individuals or a small group of individuals at a local level 2) comprehensive investigations – suited to complex issues which should be managed by a multidisciplinary team involving experts and/or specialist investigators 3) independent investigations – suited to incidents where the integrity of the internal investigation is likely to be challenged or where it will be difficult for an organisation to conduct an objective investigation internally due to the size of organisation, or the capacity/ capability of the available individuals and/or number of organisations involved. The level of investigation should be proportionate to the individual incident. Concise and comprehensive investigations should be completed within 60 days and independent investigations should be completed within 6 months of being commissioned.”
“…Investigations carried out under this Framework are conducted for the purposes of learning to prevent recurrence. They are not inquiries into how a person died (where applicable) as this is a matter for Coroners. Neither are they conducted to hold any individual or organisation to account as other processes exist for that purpose including: criminal or civil proceedings, disciplinary procedures, employment law and systems of service and professional regulation, such as the Care Quality Commission and the Nursing and Midwifery Council, the Health and Care Professions Council, and the General Medical Council. In circumstances where the actions of other agencies are required then those agencies must be appropriately informed and relevant protocols, outside the scope of this Framework, must be followed.”
MHPS (Disciplinary) Interviews: A doctor will be sent the Terms or Reference (Tor) setting out the areas of concern that the NHS will look into. an investigator will be appointed who will conduct an interview. The doctor can be accompanied but the person accompanying them cannot answer the questions on their behalf. The interview will seek to obtain replies to the concerns raised, and they will usually work from a number of witness statements. Such statements are rarely disclosed in advance, but on. occasions it will be necessary to seek further details from the investigator before answering a question.
Answers to question must be given with care, so that they are reliable and accurate. False responses or inaccurate responses could lead to a case of greater complexity, or a probity concern being about the integrity of the doctor in interview.
Where a doctor does not know the answer or cannot at time remember, they can say so, and then give the answer later, if possible. The MHPS interview is not the same as a police interview or NHS Counter Fraud interview, and so a No Comment interview, or No Comment reply unless the answer could be self incriminating of having committed a criminal offence. Care therefore needs to be taken in some interviews, to think about the question before giving an answer. A failure to answer may make things worse, and there are many occasions where doctors may have to make admissions, so as to keep their job, which could technically open them up to the risk of a criminal case, because of their “admission” to an alleged fact.
If a doctor needs a break during the interview, they should say so. If they would like to speak the person accompanying them, they should ask for time and privacy.
After the interview, the investigator will compile a report based on the evidence they have and the replies given. If there is a case to answer in their view, they will state so. Some reports say that there is no case to answer and that will be the end of the process. Where there is a case to answer, the matter might go to a disciplinary hearing. A referral to the GMC or the police is also possible, if there is credible evidence of wrongdoing. If there are significant competence concerns, such concerns might also be referred to the GMC.
Representation at NHS Disciplinary Hearings:
The right (or not) to representation within MHSP investigations and proceedings has been explored in the case of: Kulkarni v Milton Keynes Hospital NHS Foundation Trust & Anor [2009] EWCA Civ 789 (July 2009) – which determined that there will be only a few types of cases that will require an NHS employer to permit independent legal representation. The case law however acknowledges that there will be medical defence organisations that employ lawyers and that they will generally be permitted to represent their client members in MHSP processes.
MHPS: Scope of Disclosure that a Doctor is Entitled to
Burn v Alder Hey Children’s NHS Foundation Trust [2021] EWHC 1674 (QB) – This case related to the scope of disclosure that a doctor was entitled to in MHPS proceedings (also interpreting local policy). The word ‘correspondence’ did not mean every ‘document’ that had been generated needed to be disclosed to a doctor. Correspondence could include that from patients relatives. “Correspondence” must also be relevant to the case for it to be disclosed. “Relevance” is for the case manager to determine on a rational basis, subject to a rationality review by the courts. However, the courts should not be asked to micro-manage the disciplinary process or investigation. Also, disclosure did not always need to take place prior to a doctor being interviewed. (June 2021)
Personal versus Professional Misconduct and the MHPS Process
Idu v The East Suffolk & North Essex NHS Foundation Trust [2019] EWCA Civ 1649 – a Court of Appeal decision on the division between professional and personal conduct of a doctor. A medically qualified member of the adjudicating panel was only necessary in allegations relating to professional conduct. There will be some borderline cases. As well as the quotes below, see paragraphs 44 and 45 of the judgment for a summary of the issues that were found not to relate to professional conduct.
Per Underhill LJ:
- I do not accept that submission. It follows from my analysis of the authorities, and in particular from para. 26 (1)-(3) above, that I do not believe that the fact that impugned conduct may be associated with a doctor’s work necessarily means that it arises from his or her exercise of their medical skills. In my view in the case of each of the allegations the fact that the Appellant is a doctor was no more than the context in which the allegations arose: the gist of all those allegations concerned her relationship with the Trust’s management and with colleagues and staff with whom she had to deal. They did not arise out of the exercise of her medical skills. That is obvious as regards allegations (1) and (2), which concern her job title and leadership role, and also allegations (6), (7) and (9), which mostly concern her rudeness (though (9) also covers an act of insubordination). But it is also true of allegations (3) and (4). Allegation (3) is not about the substance of what medical skills she should be exercising but about an alleged refusal to co-operate in agreeing a plan. Allegation (4) is simply that she refused to work at all (coupled with a failure to give any explanation). In truth, the entirety of the allegations could be covered by the phrase used in allegation (8), namely that she had “become unmanageable”: that was a phrase also used about Dr Mattu, and Stanley Burnton LJ’s conclusion that allegation (1) in his case raised “an employment, a managerial, issue”, with no element of professional misconduct, seems to me equally applicable here.
- I should say a little more about allegation (5), which is that the Appellant had refused to provide an explanation for listing patients for surgery who had been waiting for less than the target maximum of eighteen weeks in priority to those who had already reached the maximum. Mr O’Neill pointed to evidence from a Trust witness, referred to by the ET, to the effect that the Appellant had advanced medical reasons for the cases in question which the Trust had rejected. He submitted that that showed that the allegation was indeed that the misconduct related to the way in which she had exercised her medical skills. But Simler P addresses that very point at para. 41 (iv) in her judgment and gives cogent reasons for concluding that that did not represent the gist of the complaint against her, which was – as the allegation is indeed formulated – that she refused to provide an explanation. Neither in his skeleton argument nor in his oral submissions did Mr O’Neill demonstrate that her analysis was wrong. Mr Cheetham took us to the passages in the ET’s Reasons to which Simler P refers, and they support her conclusion.
Looking at the alternative of Capability (para 47):
“Where the conduct in question takes the form, as alleged here, of rudeness, bullying and intransigence in dealings with management (without any suggestion of any underlying medical condition) it would not make sense to characterise it as raising capability issues: they are certainly not the result of lack of knowledge or ability (see para. 3 of Part IV of the MHPS).”
(October 2019)
Gross Misconduct
West London Mental Health NHS Trust v Chhabra [2013] UKSC 80 – Supreme Court: discussion of when conduct becomes gross misconduct and whether there was wilful conduct, sufficient to find gross misconduct, as opposed to serious misconduct. Breach of confidentiality, dictating on a train, alleged. (December 2013)
NCAS now PPA Involvement
Chakrabarty v Ipswich Hospital NHS Trust & Anor [2014] EWHC 2735 (QB) – when NCAS (now PPA) should and should not be involved. At para 146: “Where the NCAS considers that no assessment is appropriate, that can conclude its involvement and leave open to the employer the possibility of achieving a resolution of any unresolved capability concerns by a capability hearing. The effect of this construction is that an employer trust can proceed to a capability hearing even if it has not received advice of an assessment panel of the NCAS that the practitioner’s performance is so fundamentally flawed that no action plan has a realistic chance of success.”
See our article on the NHS’s Practitioners Performance Advice (PPA) Service
High Court Applications / Judgments
Anonymisation
Dixon v North Bristol NHS Trust [2022] EWHC 1871 (QB) (July 2022) – sets out the test for anonymisation in High Court applications. Note that the case relates to civil claims rather than MHPS, but that the legal principles may have relevance.
Restrictions on Disclosure of MHPS Outcomes in Civil Negligence Type Claims
Dixon v North Bristol NHS Trust [2022] EWHC 3127 (KB) – concerning disclosure to third-parties of MHPS outcomes, in this case potential class action claimants, for damages based on allegations concerning sub-optimal surgical procedures. (December 2022)
Royal College of Surgeons – IRM Reviews – Not amenable to Judicial Review
Taggart v The Royal College of Surgeons of England & Anor [2022] EWHC 1141 (Admin) (July 2022).
See our Article on Invited Review Mechanisms
GMC and Trust Disciplinary Proceedings
In the same case, the Trust was not obliged to wait for the resolution of concerns raised at the GMC/MPTS. At para 152: “I do not accept this argument. There is no express term of the contract requiring the Trust to await the outcome of the GMC proceedings. Whilst the MHPS framework expressly identifies when a practitioner must be referred to the GMC, it makes no provision for internal proceedings to be delayed pending the outcome of such a referral. By contrast, express provision is made about the interaction between proceedings under MHPS and criminal proceedings, and which is to take priority. Had there been any intention that a capability panel hearing should await the outcome of MPTS proceedings; this would have been dealt with expressly.“.
See also our: Guidance on the Practitioner Performance Advice (PPA) (formerly NCAS)
Call us in strict confidence on 0800 10 88 739 for details of our medico-legal services in MHPS law.