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.
Some Processes of Investigation Can Fall Outside of MHPS Process:
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:
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  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  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.”
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  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.
Call us in strict confidence on 0800 10 88 739 for details of our medico-legal services in MHPS law.