Why greater transparency in NHS disciplinary proceedings against doctors is essential
At a time when 80% of doctors are at risk of burnout and morale is low, can we afford to lose doctors due to unfair disciplinary procedures? NHS disciplinary processes, steeped in retributive justice, can lead to abuses of institutional power. Unchecked, Trusts have the potential to damage individual doctors who were perhaps at no fault or victims of institutional politics.
The GMC data is in the public domain and reported on so that we can learn wider lessons about complaints and disciplinary investigations. But NHS Trust level data remains under a cloak of secrecy. How many concerns are raised, how many are investigated, the level of fairness is neither known or reported outside of Trusts.
Bourne et als survey (2015) of 7926 BMA members highlighted significant risks of depression, anxiety, suicidal ideation and defensive practice amongst doctors who underwent a variety of complaint investigations. Over 80% felt processes would be improved with greater transparency and increased managerial competence. There is no independent oversight of how fairly the NHS disciplinary procedures are carried out. This makes it far too easy for doctors who are intimidated and less able to advocate for themselves to be pushed out. Tribunals and court cases are the only route for employers to be held to account. Some doctors will, in any case, be too fearful for their reputation and license to seek redress.
The overarching document on handling concerns is the Department of Health’s 2003 ”Maintaining High Professional Standards in The Modern NHS “ (MHPS). It is a well-intended guidance but does it maintain high professional standards? How much collateral damage does its blunt application cause?
How MHPS is applied by employers is reported as variable, due to lack of knowledge, inconsistent training amongst HR and medical managers, poor communication, and managerial politics. The Medical Protection Society’s “Getting it Right” campaign 2018 called for improvement in areas of timeliness, proportionality, fairness and accountability of employers.
What is being done to achieve a fairer process? A number of recent documents aim to build a fair, compassionate learning culture as well as tackle the problems highlighted by the tragic death of nurse Amin Abdullah in 2015 after an unfair disciplinary investigation. NHS England’s 2019 A practical guide to responding to concerns about medical practice recommends that the responsible officer considers intent, organisational factors and places emphasis on a constructive approach and partnership with the doctor throughout the investigation process and beyond. The 2019 NHS Resolution paper “Being Fair” advocates using principles of restorative justice in handling concerns and complaints because this approach was shown to have economic and staff retention benefits at Merseyside Mental Health Trust. NHS Improvement’s letter to regulators and employers should improve systemic fairness and recommends that, if a member staff who is the subject of a disciplinary investigation suffers serious harm, this be classed as a ‘never event’.
Ironically, such documents are disseminated only to the medical leaders networks in the NHS and have not trickled down the hierarchy or to the doctors themselves.
What more can be done? Doctors who may face a disciplinary investigation need agency which lies in being educated ahead of time. I believe that all doctors should have training and awareness of their employer’s disciplinary policies, know who the key staff overseeing it are, audit processes and where to get support at the employer level and outside. This could happen at the time of induction or as part of mandatory training. This is a win-win situation as employers must be clear about their processes to be transparent. At present only brief information is given to doctors in their employment contract, advising them that ‘MHPS’ is applied in any disciplinary matter.
Unfortunately, for now, it cannot be assumed that the policies used, or the processes, are fair. A doctor’s own knowledge and the support from their union, legal advice from employment lawyers, support such as NHS Practitioner Health Programme, family and friends will all be vital resources.
A national audit of the fairness of NHS disciplinary processes, with a commitment to preserve anonymity, is well overdue. Afterall how can anyone ensure accountability when no-one outside Trusts knows what is really going on?
Written by Dr Ifat Ataullah
Dr Ataullah is a retired retired Obstetrician & Gynaecology Consultant who personally was subject of a disciplinary investigation, wrongly, under a non-MHPS policy. At the time she knew nothing about MHPS, and after several weeks of unfair treatment and isolation, resigned. The Trust later apologised and retracted the allegations. The impact was lifechanging. This underlies a wish to educate doctors.
1.BMA Press Release 23 April 2019. Serious mental health crisis among doctors and medical students revealed in BMA report
2. General Medical Council. The state of medical education in the UK 2017. Chapter 3:Complaints about doctors and Chapter 4: Groups of doctors with higher rates of complaints and investigations
3. Bourne T, Wynants L, Peters M, Van Audenhove C, Timmerman D, Van Calster B, et al. The impact of complaints procedures on the welfare, health and clinical practise of 7926 doctors in the UK: a cross-sectional survey. BMJ Open. 2015;5(1):e006687.
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5. Department of Health 2003. Maintaining High Professional Standards in the Modern NHS A framework for the initial handling of concerns about doctors and dentists in the NHS. HSC 2003/012
6. Medical Protection Society . Unfair disciplinary procedures in NHS Trusts must be tackled to aid shift to open learning culture Medical Protection Society2018 [Available from: https://www.medicalprotection.org/uk/articles/unfair-disciplinary-procedures-in-nhs-trusts-must-be-tackled-to-aid-shift-to-open-learning-culture
7. NHS England . Conlon M Kirk, J. March 2019 A practical guide for responding to concersn about medical practice.
8. NHSResolution July 2019. Chaffer D, Kline R, Woodward S. Being Fair: Supporting a just and learning culture for staff and patients following incidents in the NHS. .
9. NHS Improvements letter to Regulators and employers. 4 November 2019.
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