Does the new disciplinary framework improve on HC(90)9?

Introduction

Every NHS doctor has at the back of his/her mind the knowledge that an error may result in a claim for damages by a patient. Every NHS doctor is conscious of the powers of the General Medical Council (GMC) to erase his/her registration if things go wrong. But few think much about the possibility of being disciplined or even sacked by their employing NHS Trust.

Yet, though the doctor has the protection of legal representation, an independent tribunal and formal procedural safeguards against patient claims or GMC charges, such protections have recently been swept away for the doctor whose professional reputation, career, vocation and livelihood is at stake in disciplinary proceedings brought by his/her NHS employer.

History

The procedure for investigating and pursuing disciplinary measures including dismissal against senior medical staff was, until June 2005, a procedure called HC(90)9 (Annex B for serious allegations). This was set out in a Health Circular in 1990. It was a slightly more refined version of its 1961 predecessor, HM 61(112), which in turn originated from Ministerial guidance first given in 1951. ¹

While the NHS was a highly centralized organization, circulars from the Department of Health (DoH) were regarded as binding. The NHS standard terms and conditions of employment for consultants of the 1960s, 1970s and 1980s specifically referred to HM 61(112) as the disciplinary procedure and hence it was incorporated into the contract of employment between the doctor and the employing authority. This was fortified by statutory instrument so that employing authorities had no option but to be bound by HC(90)9.

From the late 1990s and in keeping with devolution in the NHS, Trusts were encouraged to adapt HC(90)9 and adopt the adapted version as their own procedure (rather than simply making a reference to HC(90)9 in the paragraph dealing with disciplinary matters in the terms and conditions statement they issued to their consultants). Typically, the Trust's adapted version was thereby incorporated into the contract of employment.

On 17 February 2005 the DoH issued a statutory instrument, ‘Directions on Disciplinary Procedures 2005’, effective from 1 June 2005, annexed to which was Maintaining High Professional Standards in the Modern NHS (MHPS). The Directions withdrew HC(90)9 and MHPS instructed NHS Trusts (and advised Foundation Trusts) to replace HC(90)9 type procedures with whatever disciplinary procedure for alleged misconduct the particular Trust had for the rest of its staff. For alleged incapability MHPS established a new procedure.

HC(90)9 procedures

The procedural characteristics of the HC(90)9 Annex B were full. The principal features were described as a ‘judicialized procedure’ by Lord Steyn in the leading decision of the Judicial Committee of the House of Lords in Skidmore v Dartford & Gravesham NHS Trust [2003] ICR 721 HL. He found that:

12. … In cases involving personal conduct Annex B provides that ‘the position of a doctor or dentist is no different from that of other health service staff’. With regard to cases involving professional misconduct and professional incompetence, Annex B of the Circular provides in para 8 that the panel (consisting usually of three members) should have a legally qualified chairman. Moreover in such cases Annex B of the Circular provides, inter alia, in para 12 for the following further procedural rights:

‘The practitioner should have the right to appear personally before the investigating panel and to be represented (either by a lawyer … or otherwise), and to hear all the evidence presented to the panel. He should have the right to cross-examine all witnesses and to produce his own witnesses, and they and he may also be subjected to cross-examination.’

By contrast the internal procedure applicable to cases of personal conduct contains no such safeguards and is generally more informal.

Lord Steyn cited from the report which led to HC(90)9:

‘The Working Party recognised the professions’ concerns that disciplinary procedures for senior doctors and dentists must ensure that the grounds for dismissal have been fully justified, since a specialist who has been dismissed from an NHS post on professional grounds would be unlikely to find alternative employment elsewhere. The professions felt that the procedures used should be sufficiently weighty to reflect both the long periods of training and competitive selection processes which doctors have undergone before appointment to senior posts, and also the potential gravity of the outcome of such procedures.'

HC(90)9, Annex B thus provided procedural steps protecting consultants faced with discipline by their employers over matters of professional conduct or professional competence which were notably more extensive than those which applied to allegations of personal misconduct (dealt with by the employer's ordinary disciplinary procedure applicable to other categories of staff).

The new disciplinary procedure

The new 2005 disciplinary procedure for the NHS in Maintaining High Professional Standards in the Modern NHS covers both matters of conduct – professional and non-professional – and competence.

Features of the new procedure are:

HC(90)9 itself is abolished. HC(90)9 type procedures in Trust policies and contracts were to be removed and replaced by the same disciplinary procedures as for all other staff employed by the employer:

Misconduct matters for doctors and dentists, as for all other staff groups, are matters for local employers and must be resolved locally. All issues regarding the misconduct of doctors and dentists should be dealt with under the employers' procedures covering other staff charged with similar matters;

The conduct procedure under MHPS

In the usual conduct case the investigation is to be carried out by a ‘case investigator’ under the oversight of the Medical Director as ‘case manager’. The case investigator ‘must obtain appropriate independent advice’ (para 2) and must give the opportunity of interview to the doctor under investigation. At all stages the doctor may be accompanied but, if the companion is legally qualified, ‘he or she will not be acting in a legal capacity’ (Part I, para 14; Part IV, para 22).

The case manager will decide if there is a case of misconduct which should be put to a ‘conduct panel’. The document is silent as to the composition of, the procedure before, and any appeal from a ‘conduct panel’, save for the provision that the conduct panel must include a medically qualified member (not currently employed by the NHS body) if the case involves professional conduct. ² This contrasts with detailed provisions for capability cases which go to a ‘capability panel’, the composition of which, the procedure for which, and the appeal mechanism from which are all set out in Part IV.

There is no requirement for the membership of either Panel to be agreed by the clinician to the Panel – even under the capability procedure ‘it is for the employer to decide on the membership of the Panel’ (Part IV, para 20). There is no requirement that witnesses giving evidence against the clinician (even expert evidence) must attend the hearing to be cross-examined – even under the capability procedure: ‘witnesses… will not necessarily be required to attend…’ (Part IV, para 17).

Removal of protection

Striking differences between HC(90)9 and MHPS are immediately apparent:

No independent Panel with a legally qualified Chair; instead a Panel presided over by the local HR Manager will hear the case;

There can be no doubt that, in relation to allegations of professional misconduct, MHPS constitutes a fundamental degradation of the procedural protections which senior medical staff formerly enjoyed for over 50 years.

One curiosity is why the medical profession acceded to this. MHPS is an agreed settlement, not an imposed diktat. Nye Bevan claimed to have stuffed consultants' mouths with gold to buy their acceptance of the NHS. Surely no-one is so cynical as to think that they were bought off again by the salary increases in the near contemporaneous New Consultant Contract? Were it so, it was a cheap price for the surrender of legal protections guaranteed by the European Convention on Human Rights and Fundamental Freedoms in relation to equivalent allegations brought by the GMC or by a patient with a damages claim. Perhaps the lack of opposition to the removal of their rights has a less sinister explanation – maybe no-one appreciated the significance of what they were about to lose.

The protection of the professional reputation and career of the senior medical practitioner is now no greater than that of any other NHS employee. While it can be argued that a labourer deserves no less protection against unfair discipline than a hospital consultant, the Working Party which drafted HC(90)9 was right to emphasize that dismissal from the NHS for a doctor on grounds of professional misconduct inevitably means the end of his or her career and vocation. In contrast dismissal of an unskilled worker may be a bitter blow but does not generally mean that he or she is blacklisted nationally (and usually internationally) by every employer in the trade. Furthermore (notwithstanding the Government's controversial imposition of fees on students) the cost to the public of training a consultant runs into hundreds of thousands of pounds, the benefits to the public of which are wholly lost if the consultant is dismissed and rendered unemployable as a doctor.

The removal of protections against disciplining of hospital consultants in relation to professional matters is an assertion by the NHS towards their senior medical staff of the subservience inherent in the employment relationship in fact and in law. It is ironic that this development should have coincided temporally with the courts' development of a doctrine of fundamental mutuality in the employment relationship both in relation to the essential qualities necessary to create a contract of employment and in the form of implied reciprocal duties to maintain trust and confidence.

No-one doubts that there are there incompetent doctors, and some who behave so badly that they should be dismissed from employment. The imperative to protect the public is recognized by all. Patient safety must have a higher priority than justice for doctors. But the two are not incompatible. And dismissal of falsely accused competent doctors does nothing to protect patients.

The fact is that NHS disciplinary procedures are sometimes abused by those with ulterior motives. The ability of management (in particular) to do so is now markedly enhanced. Furthermore, Sir Liam Donaldson, Chief Medical Officer, found in Good doctors, safer patients: Proposals to strengthen the system to assure and improve the performance of doctors and to protect the safety of patients:

‘that there was something of a climate of fear and retribution, so that any lapse in performance or simple human error was seen as punishable by suspension, disciplinary action and referral to the General Medical Council. This remains the case today.’

‘Today’ was the summer of 2006, one year after the 2005 procedures were to be implemented. Sir Liam pointed out that:

‘A culture of blame and retribution has dominated the approach to this whole field so that it has been difficult to draw a distinction between genuine misconduct, individual failure, human error provoked by weak systems, and untoward outcomes which were not the result of any specific failure. An “off with their heads” approach to every problem will ultimately make healthcare and medical practice more dangerous, since no one will admit their own mistakes, nor will they want to condemn a colleague's career to ruin.’

It follows that whatever techniques are utilized in the NHS to avoid the ‘blame culture’, senior medical staff who have committed so much of their own lives to their careers and who represent such a high investment by the nation in those careers continue to warrant proper protection against the abuse of discipline.

The justification for the particular protections intended by the working party which drew up HC(90)9 (cited by Lord Steyn – see above) remain valid today.

Justification for change

Various reasons have been put forward as the rationale for the changes in disciplinary procedure for senior medical staff.

MHPS itself offers no explicit explanation. It simply states that ‘changes to NHS disciplinary procedures are necessary’.

The Minister, John Hutton, in the press release accompanying MHPS claimed that:

‘We must do all we can to avoid doctors and dentists being suspended for long periods on full pay. The existing procedures are unjustifiably prolonged and are not fair to NHS staff, taxpayers or patients. The new process ensures resources are not diverted away from patient care into the pockets of lawyers.’

True, a common complaint had been the length of suspension/exclusion prior to HC(90)9 hearing. Such delays were, without doubt, often excessive. This unfairness is advanced implicitly as a rationale for MHPS (page 1 of MHPS). But apart from prolonged exclusion, there is, as far as I am aware, no evidence that the HC(90)9 procedure was unfair to NHS staff.

Exclusion was not inherent in the HC(90)9 process (which in fact says nothing about exclusion). Neither was extensive delay inherent (save for that inevitable in the convening of an independent Panel of three plus lawyers and witnesses for both sides, the prior exchange of statements and documents and the subsequent writing of the Panel report). A potent cause of delay was the fact that exclusion of the doctor removed the imperative on management to proceed with any haste. The pre-existing exclusion procedure, HSG (94)49, was revised by MHPS Part II, though the actual changes from the latter provide little greater protection than the former. Whether in reality MHPS will improve decisions on exclusion remains in doubt. Nonetheless, long exclusions pending a hearing will become a rarity with the advent of a procedure that fundamentally downgrades protection against dismissal itself. Whether senior doctors would regard that as a price worth paying is dubious.

Mr Hutton is obviously correct in pointing out that the exclusion of lawyers saves money. But distasteful as it may be to non-lawyers, representation by a skilled and legally qualified advocate remains a central pillar of every system of justice. The denial of the right to such representation to doctors whose vocation and career is in jeopardy requires persuasive justification. Little is evident.

Furthermore, what is lost with the demise of HC(90)9, is the independence and impartiality of the process – independence which is essential to prevent senior medical staff being dismissed on trumped up charges generated by personal malice or professional jealousy, or intended to neutralise an outspoken defender of patient services from the economic imperatives of management. I regret to say that some of the cases which come across my desk in Chambers appear to be darkened by the malevolent shadows cast by such (almost inevitably unprovable) factors.

The real reason for the deprivation of the special employment protections of hospital consultants is not obvious. It might well be thought that the current turmoil and debate in the NHS about its future was a factor tending towards measures that might assist in the neutering of opposition from within. Some may consider it to be part of a longer-term measure in the NHS whereby administration has been progressively removed from clinicians and placed in the hands of managers in a fast-growing culture which gives primacy not so much to patient care but to the economic performance of the organization. Perhaps there are other imperatives.

Whether these explanations have any credibility or not, the cases speak for themselves. In case after case heard by the High Court, NHS employers were injuncted from evading the procedural requirements of HC(90)9. Now the power of discipline has been transferred from an independent panel chaired judicially to internal management, and, in the absence of legal representation for the doctor, it may be assumed that evasions of due process will diminish (in proportion to the ease of dismissing the ‘difficult’ doctor).

By the same token, because of the formal nature of HC(90)9 type procedures, it was possible to obtain effective enforcement of the procedure in the courts. By contrast the great discretion vested in managers in consequence of MHPS means that there now is little scope for recourse to the courts for doctors undergoing discipline.

Unfair dismissal

It is, of course true that a dismissed consultant, like other employees, has a right to make a claim to an employment tribunal for unfair dismissal under the Employment Rights Act 1996. However, the maximum compensation is limited to £63,000 for dismissals after 1 February 2008 and the latest statistics show that the median award actually awarded by tribunals was a mere £3000 (average award: £7974). Though re-instatement is ostensibly the primary statutory remedy, in fact it was ordered in only 0.3% (23 out of 8415) cases which went to a hearing, 0.06% of cases disposed of by the tribunals. In consequence, the remedy of unfair dismissal is of little value to consultants. If he or she can show race, sex, religious, whistle-blowing or, now, age discrimination, awards can be significantly higher. But proving an illegitimate reason for dismissal is much harder than proving, in front of an independent specialist panel, that allegations of professional misconduct or incompetence are not justified.

Conclusion

With the replacement of HC(90)9 procedures by ‘ordinary’ disciplinary procedures applicable to all Trust employees, senior medical staff have lost valuable protections in relation to allegations of professional misconduct and capability. In my view, the profession should consider carefully whether the restoration of some more formal procedure with an independent, legally-chaired panel and a proper opportunity to challenge the charges through a professional advocate is not a necessary step towards the maintenance of the proper role of doctors in the NHS. The fundamental requirements are: (1) that the chair of conduct and capability panels should be an independent lawyer drawn from a list maintained by the Ministry of Justice; and (2) that the senior medical practitioner should be entitled to legal representation if the charge is one of professional misconduct or lack of capability. The structure can then be elaborated from those two fundamentals.