Update: Trusts must change their approach to disciplinary processes (MHPS)

17 January 2020

Author: Rachael McAdorey
Practice Area: Healthcare

Law

Baroness Dido Harding, Chair of NHS Improvement, issued correspondence entitled ‘Learning lessons to improve our people practices’ to NHS Trust and NHS foundation Trust Chairs and Chief Executives dated 24th May 2019.

This correspondence followed an investigation established by NHS Improvement, following an investigation / disciplinary procedure undertaken by a London NHS Trust in 2015 / 2016. Mr Amin Abdullah was summarily dismissed on the grounds of gross misconduct, following a prolonged disciplinary procedure. In February 2016, prior to an appeal hearing, Mr Abdullah took his own life. A subsequent investigation undertaken by Verita Consulting concluded that, in addition to serious procedural errors having been made throughout the investigation and disciplinary process, Mr Abdullah was poorly treated, which resulted in a severe impact on his mental health. Verita’s recommendations were accepted in full, and were largely implemented by the Trust.

NHS Improvement subsequently established a ‘task and finish’ Advisory Group to determine the extent to which the failings in Mr Abdullah’s case are unique, or indeed are more widespread across the NHS, and what learning can be applied. The Advisory Group conducted an independent analysis of the Verita findings in Mr Adbullah’s case, and several historical disciplinary cases, which highlighted key themes between both.

The main issues identified were: poor framing of concerns / allegations; inconsistency in the fair and effective application of local policies and procedures; lack of adherence to best practice; variance in the quality of investigations; shortcomings in the management of conflicts of interest; insufficient consideration and support of the health and wellbeing of individuals; and an over-reliance on immediate application of formal procedures, rather than considering alternative responses to concerns.

Enclosed with Baroness Harding’s correspondence is ‘Additional guidance relating to the management and oversight of local investigation and disciplinary procedures’, prepared following the Advisory Group’s recommendations, and a request for Trust Chairs / Chief Executives to review current processes, and make adjustments where required, to bring the organisation into line with this best practice.

In summary, these recommendations are as follows: (1) Adhering to best practice, such as what is detailed in the codes of practice from ACAS, the GMC and NMC, and ensuring independence and objectivity at every stage; (2) Applying a rigorous decision-making methodology – formal management or action is not always necessary, therefore consistent decision making methodology should be applied, and important decisions should be well informed, reviewed from multiple perspectives, and never taken by just one person; (3) Ensuring people are fully trained and competent to carry out their role, and are able to demonstrate the aptitude and competencies; (4) Assigning sufficient resources to support the completion of the procedures. Independence should also be considered; (5) Decisions relating to the implementation of suspension / exclusions should not be taken by one person alone, or anyone with a conflict of interest. With the exception of security / safety, suspension / exclusion should be a measure of last resort that is proportionate, time bound and only applied where there is full justification for doing so. Ongoing suspension / exclusion should be subject to appropriate senior-level oversight; (6) Safeguarding people’s health and wellbeing, including implementing a communication plan forming part of the Terms of Reference. Communication ought to be timely, comprehensive, unambiguous, sensitive and compassionate; and (7) Board level oversight – comprehensive data relating to investigation and disciplinary procedures should be regularly reported at board level.

Roger Kline, Consultant on workforce culture and Research Fellow at Middlesex University Business School, recently wrote on LinkedIn that a ‘New Year’s resolution on NHS disciplinary action’ is required. Mr Kline highlights that disciplinary proceedings are bad for patient care, and focus on blame, rather than learning. In addition “unnecessary, incompetent or vindictive disciplinary proceedings will make it less likely that staff will raise concerns or admit mistakes, for fear of the potential consequences.” He highlights bias, making it more likely that black and minority ethnic staff will enter the disciplinary process (as data confirms).

Further, Mr Kline notes that “unnecessary, incompetent or vindictive disciplinary cases cost the NHS a lot of money. No reliable estimates exist of the cost of NHS disciplinary cases though one sense of the range might be gauged from the estimate by Duncan Lewis and myself that the average cost of an NHS bullying case was about £42,000, excluding any legal advice and costs”. In Mr Kline’s view, Baroness Harding’s document ought to be pinned to the wall of every manager’s office, in all HR offices and to the noticeboard of every trade union in every NHS employer. He summaries the questions (as outlined in Baroness Harding’s letter) that each NHS Trust ought to ask in relation to disciplinary cases, and take corrective action in response. He concludes “The NHSi advice from Dido Harding is another brick in the wall. It is good. Let’s make sure it is acted on.”

A recent judgment in the case of Caroline Harrison v Barking, Havering and Redbridge University Hospitals NHS Trust also makes reference to Baroness Harding’s correspondence with regard to recommendation 5 (suspension) and 6 (safeguarding health and wellbeing). In this case, a lawyer employed by an NHS Trust successfully sought an interim mandatory injunction, allowing her to return to her normal duties following a protracted period of suspension, which was considered unjustifiable by the Judge.

What impact Baroness Harding’s recommendations will have on any future MHPS processes remains to be seen. However, in our view, it would do no harm for an investigating Trust to be reminded of these recommendations at the outset of a disciplinary investigation. In doing so, the Trust will be put further on notice of its obligations and responsibilities under MHPS.

Sources:

http://www.airedale-trust.nhs.uk/wp/wp-content/uploads/2019/06/item-7iii-Chief-Executive-report-Appendix-2-letter-to-chairs-and-chief-executives-24-may-2019.pdf

https://www.linkedin.com/pulse/new-years-resolution-nhs-disciplinary-action-roger-kline/.

http://www.bailii.org/ew/cases/EWHC/QB/2019/3507.html

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