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 or appears to have committed misconduct . In essence, the framework deals with aspects of misconduct (note that the distinctions between personal and professional conduct in the previous framework have been removed), incapability and poor performance among doctors and dentists, including ill-health causes. There is a fair amount of case law on the issue of its application and processes. The MHPS process should apply in all cases concerning doctors but MHPS processes might not apply to all situations, and another local employer disciplinary policy will then be used instead. One has to scrutinise the approach adopted by employers, to ensure that they adopt the correct procedure.

Examples of Some Processes of Investigation Can Fall Outside of MHPS Process:

England

See by way of example: Jain v Manchester University NHS Foundation Trust [2018] EWHC 3016 (QB)

35.  … I accept that on the facts of the Claimant’s case it is correct to conclude that the provisions of the MHPS are relevant considerations when determining whether the Trust has acted consistently with the trust and confidence obligation.

…

63. Notwithstanding this connection I do not consider that as at December 2017 the Trust was bound as a matter of contract, to act by means of an MHPS Part IV investigation. As I have already explained, the difference between the process for such an investigation and the process followed by the Lockett investigation has been slight. This is clearly relevant to whether the way the Trust acted was in breach of the trust and confidence obligation. As regards the subject matter of the investigation, the focus of the terms of reference was the breakdown in working relationships. Some of the consultant radiologists expressed clear concerns about the Claimant’s capability to work in the Breast Service; that was part of the picture. Yet the terms of reference for the Lockett investigation rested on the premise that those capability concerns could and would be addressed separately. I do not consider that the simple existence of a connection between the November 2015 issues and those to be investigated in December 2017 was such as to require the Trust to treat the investigation as an MHPS investigation.

(13 November 2018)

The court in Jain found that it was permissible to carry out an ‘investigation’ into the working relationships of the doctor and their colleagues outwith the MHPS procedure, as it was part of a potential mediation process.

Wales

See also  case law on the Welsh provisions, Upholding Professional Standards in Wales (UPSW):

Smo v Hywel DDA University Health Board [2020] EWHC 727 (QB) see especially paragraphs 26 to 32 on the provisions of the UPSW framework, which describes the framework. See also para 22:

22. It is common ground that the provisions referred to in clause 9.2 have been superseded but that the effect of clause 9.2 is expressly to incorporate UPSW. UPSW is a relatively new disciplinary procedure which was agreed between NHS staff side representatives, including the BMA, NHS Employers in Wales, and the Welsh Government following very lengthy negotiations. Its equivalent in relation to the NHS in England is “Maintaining High Professional Standards in the Modern NHS” (“MHPS”), which was required to be implemented by employers by 1 June 2005 and which is considered in some of the decided cases which I refer to below.

(26 March 2020)

The History of the MHPS process:

Procedure Prior to MHPS

The MHPS replaces the procedure set out previously in NHS circular HC(90)9. Its construction (on what was professional and personal conduct) was judicially interpreted in the case of Skidmore v Dartford & Gravesham NHS Trust [2003] UKHL 27 (22 May 2003).

Maintaining High Professional Standards (MHPS) Scope

The MHPS process came into effect through the 2003 NHS circular HSC 2003/012. It replaced (in part) the NHS Circular HC(90)9. Initially the MHPS framework covered: Part I: Action when a concern arises; and Part II: Restriction of practice and exclusion. Later, it also included: Part III: Conduct hearings and disciplinary matters; Part IV: Procedures for dealing with issues of capability; and then Part V: Handling concerns about a practitioner’s health.

However, there have been various judicial interpretations over time, which were eventually reviewed by the Supreme Court in Skidmore v Dartford & Gravesham NHS Trust [2003] UKHL 27 (22 May 2003)

Into Which Category Should the Employer Allocate the Case?

It is important for an employer to get it right because if they dismiss a doctor having used the wrong procedure it could lead to a finding by an Employment Tribunal of Unfair Dismissal.

Skidmore:

“18. It is now necessary to consider how the case against Mr Skidmore should be categorised. The starting point must be the proper interpretation of the definitions contained in the disciplinary code. It seems right to treat the definitions of professional conduct (“behaviour of practitioners arising from the exercise of medical or dental skills”) and professional competence (“adequacy of performance of practitioners related to the exercise of their medical or dental skills and professional judgment”) as the primary categories. Personal conduct is the residual category consisting of “behaviour . . . due to factors other than those associated with the exercise of medical or dental skills”(Emphasis added). If a case is properly to be categorised as involving professional conduct or competence, the judicialised disciplinary route under HC(90)9 is obligatory. That is so even if the case could also be said to amount to personal misconduct.

19. For present purposes it is unnecessary to examine the distinction between professional conduct and professional competence. It is common ground that professional competence is not a relevant category. The line drawn between professional conduct and personal conduct is conduct “arising from the exercise of medical or dental skills” and “other” conduct. How this distinction should in practice be applied must now be considered. The structure of the disciplinary code set out in HC (90)9 is a classic case requiring a broad and purposive interpretation enabling sensible procedural decisions to be taken. It would, for example, be surprising if a case where a doctor embarked on an intimate medical examination of a woman, which he knew to be wholly unnecessary, necessarily fell outside the scope of what may constitute professional misconduct. After all, in such a case, the doctor is using his position as a hospital doctor to perpetrate an act of serious professional misconduct. I cannot, therefore, agree with the ruling in Saeed (para 24, at p 910D) that an indecent assault committed by a doctor during a medical examination cannot constitute professional misconduct within the code. It is a case of a doctor misusing his ostensible medical skills for improper purposes. In my view it falls within the scope of professional misconduct within the definition. Relying on the text of HC (90)9 I take the view that a purposive construction, and common sense considerations, point towards a broad interpretation of professional conduct.

20. Since the decision in Saeed and the hearing in the Court of Appeal there has become available the Joint Working Party Report setting out the reasons for the line drawn between professional and personal misconduct. The emphasis is on the serious consequences for a doctor of an adverse decision, making a doctor dismissed on professional grounds virtually unemployable. In my view this background material reinforces a broad interpretation of HC (90)9 notably in respect of what may amount to professional misconduct. It supports the interpretation that when in a doctor/patient relationship a doctor commits deliberate misconduct it may come within the category of professional conduct.”

Exclusions from Work (MHPS Process):

In some instances an employer will impose restrictions or exclude a doctor from the workplace. This is not always justified, and some employers can get it wrong.

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 from Work:

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. This case may have since been qualified by later case law.

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, it was held. 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:

1. 1. 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.

1. 1. 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

Injunctions to Prevent Employer Proceeding with Investigation Outwith UPSW (some relevance to MHPS)

Smo v Hywel Dda University Health Board [2019] EWHC 1973 (QB) – the American Cyanamid [1975] 1 A.C principles were considered. An injunction was imposed by the court to prevent the employer from interviewing the doctor until a trial on the issues (or further order). The employer was undertaking an investigation into whether there had been a breakdown of relationships of Dr Smo and their colleagues, and what steps should be taken in light of any findings. (25 July 2019)

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

Enforcing MHPS Procedures in the Workplace (Older Case Law)

Lauffer v Barking, Havering & Redbridge University Hospitals NHS Trust [2009] EWHC 2360 (QB) (10 August 2009)

Kerslake v North West London Hospitals NHS Trust [2012] EWHC 1999 (QB)

Lauffer, Kerslake and Jain cases interpreted:-

Summarised in Smo v Hywel(cited above) at [177], “In Lauffer the evidential position was such that the court was unwilling to accept (at least at the interim stage) the Trust’s case as to its true reasons for the disciplinary proceedings which were challenged.” In Kerslake the evidential position was such that the court was willing to do so and it held that the terms of the particular contractual procedure, MHPS, did not apply to these reasons. In Jain the case turned on the question of breach of mutual trust and confidence rather than the true construction of MHPS, although the court considered that the issues in the Lockett investigation were probably not issues of capability as defined.”

Note that these cases preceded the Supreme Court decision of Skidmore, cited above.

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)

Duty of Employer to Act Rationally 

When exercising a discretion, such as deciding whether to exclude a doctor from work, an employer must act in a manner that is not capricious, arbitrary, or irrational, per Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd [2013] EWCA Civ 200.

This principle was further approved in general in the case of Braganza v BP Shipping [2015] UKSC 17. In that case, the Supreme Court adopted public law principles to a private law, contractual, discretionary decision-making scenario, applying the two limbs (ie. i. taking all matters into account; ii not arriving at a decision that no reasonable decision-maker could make) of the unreasonableness test set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The Braganza principles relate to discretionary decisions and are an implied term in contracts, in appropriate cases.

Call us in strict confidence on 0800 10 88 739 for details of our medico-legal services in MHPS law.