CONDUCT, CAPABILITY, Ill HEALTH & APPEALS …...Conduct, Capability, Ill Health and Appeals Policy inc Procedure for Medical and Dental Practitioners Version No. 5.0 Page 2 of 40 DOCUMENT

Conduct, Capability, Ill Health and Appeals Policy inc Procedure for Medical and Dental Practitioners Version No. 5.0

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CONDUCT, CAPABILITY, Ill HEALTH & APPEALS POLICY AND

PROCEDURE FOR MEDICAL AND DENTAL

PRACTITIONERS

Document Author Authorised Signature

Written By: Senior HR Manager Date: April 2019

Authorised By: Chief Executive Date: 20th May 2019

Lead Director: Medical Director and Director of Human Resources and Organisational Development

Effective Date: 20th May 2019

Review Date: 19th May 2022

Approval at: Policy Management Sub-Committee

Date Approved: 20th May 2019


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DOCUMENT HISTORY (Procedural document version numbering convention will follow the following format. Whole numbers for approved versions, e.g. 1.0, 2.0, 3.0 etc. With decimals being used to represent the current working draft version, e.g. 1.1, 1.2, 1.3, 1.4 etc. For example, when writing a procedural document for the first time – the initial draft will be version 0.1)

Date of Issue

Version No.

Date Approved

Director Responsible for Change

Nature of Change Ratification / Approval

21 Mar 13 1.1 Revised into Trust Format

Apr 13 1.1 Updated section headings & general formatting

Executive Medical Director

References to the Francis Report added

Jun 13 1.1 Executive Medical Director

Ongoing amendments following feedback

Reviewed by HR, LNC & BMA Rep’s.

Mar 14 1.1 Executive Medical Director


Reviewed by HR, LNC & BMA Rep’s.

May 14 1.2 Executive Medical Director


Reviewed by LNC & BMA Rep’s.

Jul 14 1.3 to 1.6

Executive Medical Director


Reviewed by LNC & BMA Rep’s.

29 Jul 14 1.6 Executive Medical Director

Ratified at Policy Management Group

17 Mar 15 1.6 Executive Medical Director

Amended in line with National Guidance under legal advice

Ratified at Policy Management Group

23 Mar 15 2 23 Mar 15 Executive Medical Director

Approved at Trust Executive Committee

30 July 15 2.1 Executive Medical Director

Addition of Decision Making Group to section 6.5-7

Reviewed and agreed by LNC

18 Aug 15 2.1 Executive Medical Director

Policy Management Group

21 Sep 15 3 21 Sep 15 Executive Medical Director

For Approval Trust Executive Committee

29 Oct 15 3.1 Executive Medical Director

Amendment to section 10.2

LNC

24 Feb 16 3.1 Executive Medical Director

Amendment to section 6.4, 10.2 and 12

LNC

12 April 16 3.2 Executive Medical Director

For ratification

Policy Management Group

12 May 16 4 12 May 16 Executive Medical Director and Director of Finance and HR

Approved at Trust Executive Committee

May 2019 4.1 Director of HROD Policy reviewed

March 2019 4.1 Director of HROD Endorsed at Joint Local Negotiating Committee

20 May 19 5.0 20 May 2019 Director of HROD Approved at Policy Management Sub-Committee

NB This policy relates to the Isle of Wight NHS Trust hereafter referred to as the Trust.


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Contents Page

1. Executive Summary ........................................................................................................... 4

2. Introduction ........................................................................................................................ 4

3. Definitions .......................................................................................................................... 4

4. Scope .................................................................................................................................. 6

5. Purpose............................................................................................................................... 6

6. General Principles Applicable to the Policy and Procedures ......................................... 7

6.1.Confidentiality .............................................................................................................. 7

6.2.Roles and Responsibilities .......................................................................................... 7

6.3.Working with other Organisations, Referrals to Regulators and Alert Letters ........ 9

6.4.The Right to be accompanied .................................................................................... 10

6.5.Termination of Employment with Disciplinary or Capability Issues Unresolved ... 10

6.6.Supporting the Practitioner ....................................................................................... 10

7. Restriction of Practice and Exclusion from Work .......................................................... 10

8. Process Requirements .................................................................................................... 12

8.1.Identification of conduct, capability and performance issues ................................ 12

8.2.Procedure for dealing with concerns ........................................................................ 13

8.3.Formal Exclusion ....................................................................................................... 20

9. Allegations of Criminal Acts ............................................................................................ 21

10. Formal Hearings – capability and disciplinary ............................................................... 22

11. Allegations of Professional Misconduct ......................................................................... 24

12. Procedure to be followed at hearings ............................................................................. 25

13. Appeals against Capability Decisions ............................................................................ 26

14. Handling Concerns about a Practitioner’s Health.......................................................... 29

15. Consultation ..................................................................................................................... 30

16. Training ............................................................................................................................. 31

17. Monitoring Compliance and Effectiveness .................................................................... 31

18. Links to Other Organisation Policies/Procedures ......................................................... 31

19. References ........................................................................................................................ 31

20. Appendices ....................................................................................................................... 32

A Financial and Resourcing Policy Impact Assessment

B Equality Impact Assessment (EIA) Screening Tool

C Process Flow Chart

D Decision-Making Checklist - When concerns first arise

E Decision-Making Checklist - Formal exclusion/restricting practice


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1. Executive Summary This Policy and procedure sets out how the Isle of Wight NHS Trust (hereafter referred to as “the Trust”) will support doctors This Policy and procedure is intended to reflect the Maintaining High Professional Standards in the Modern NHS (MHPS) framework for handling disciplinary procedures and the processes contained within it and should be read in conjunction with that framework. These include dealing with issues of performance, of conduct, misconduct and capability, and the handling of concerns relating to a practitioner’s health. Under the Restriction of Practice and Exclusion from Work Directions 2003, all NHS bodies must comply with the framework contained within the document: Maintaining High Professional Standards in the Modern NHS. This document introduced a revised framework for:

the initial handling and investigation of concerns about the conduct and performance of medical and dental staff, and

the restriction of practice and exclusion from work, which replaces all existing guidance on the suspension of doctors and dentists.

2. Introduction

Developing arrangements for handling issues relating to medical and dental staff performance has become increasingly important, both to tackle the many cases of inappropriate and lengthy ‘suspensions’ and to reflect systems for quality assurance and quality improvement which have been introduced in the NHS in recent years. The approach set out in Maintaining High Professional Standards framework, and reflected in this Policy, builds on four key elements:

appraisal and revalidation – processes which encourage practitioners to maintain their skills and knowledge needed for their work through continuing professional development

the advisory and assessment services of NHS Resolutions Practitioner Performance Unit (hereafter referred to as “NHS Resolutions) (formerly National Clinical Assessment) – aimed at enabling employers to handle cases quickly and fairly, and reducing the need to use disciplinary procedures to resolve problems

tackling the blame culture – recognising that most failures in standards of care are caused by ‘systems’ weaknesses, and not individuals per se; and

abandoning the suspension culture – by introducing the arrangements for ‘exclusion from work’

3. Definitions

Practitioner: for the purpose of this policy means either a medically qualified doctor or dentist who is employed by, or who has an honorary contract with the Trust.

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/Browsable/DH_5279423


http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4103347.pdf




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Concern for the purpose of this policy this means a report, complaint or expression of concern from any source about the conduct or performance of a practitioner. The concern may relate to a single incident or a sequence of events and must be in writing. Fitness for purpose: means the doctor meets expected standards for the speciality/grade. These are normally set by the employer and guided by specialist standards determined by Royal Colleges. Fitness to practice standards; are the minimum standards for the grade/speciality set by the General Medical Council. Disclosure and Barring Service (DBA): is the organisation formed by the merger of the Criminal Records Bureau (CRB) and the Independent Safeguarding Authority. Follow this link to find out more https://www.gov.uk/disclosure-barring-service-check/overview Case Manager is appointed by the Medical Director who has delegated authority from the Chief Executive. The Case Manager will identify the nature of the concern and assess the seriousness of the issue. Case Investigator is responsible for leading the investigation into any allegations or concerns about a practitioner, establishing the facts and reporting their findings to the Case Manager. Conduct is the way it expects all staff to behave and perform. These are set out in its policies and procedures. Capability is the quality of an individual’s ability to perform. General Medical Council (GMC)’s role is to protect patients and improve medical education and practice across the UK. As part of this role they: decide which doctors are qualified to work in the UK; oversee UK medical education and training; set standards doctors need to follow throughout their careers, and where necessary, take action to prevent a doctor from putting the safety of patients, or the public’s confidence at risk. General Dental Council (GDC)’s primary purpose is to protect patient safety and maintain public confidence in dental services. To achieve this, they register qualified dental professionals, set standards for the dental team, and investigate complaints about dental professionals' fitness to practice, and work to ensure the quality of dental education. Disciplinary action: applies to formal action that may be taken against an employee ranging from formal warnings and up to dismissal where there is reasonable belief that misconduct has occurred. Reasonable belief: Any disciplinary action taken will be based on the evidence obtained using the balance of probabilities that misconduct has occurred. This is significantly different to a criminal investigation whereby the onus is to prove an occurrence ‘beyond reasonable doubt. Misconduct can be defined broadly as inappropriate actions taken by an individual that is in breach of the rules, principles and policies of the Trust. Gross misconduct is conduct that is so serious that it destroys the employment relationship and justifies dismissal. Ill Health refers to a Practitioners inability to perform in their role due to their ill health.

https://www.gov.uk/disclosure-barring-service-check/overview


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Summary dismissal is dismissal without pay or pay in lieu of notice. However any outstanding annual leave due up to the date of dismissal will be paid.

4. Scope

This Policy and Procedure applies to all doctors and dentists employed directly or indirectly by the Isle of Wight NHS Trust (the Trust). In the handling of concerns relating to conduct and performance of doctors and dentists, the following guiding principles will apply: 4.1. An open approach to reporting and tackling concerns about doctors’ and dentists

practice will be taken, recognising the importance of seeking to tackle performance issues through training, or other remedial actions, rather than solely through action. Notwithstanding this approach, the provisions of the Policy do not intend to weaken the accountability or avoid disciplinary action, where genuinely serious issues/concerns are evident.

4.2. It is recognised that unfounded and malicious allegations can cause lasting damage to a practitioner’s reputation and career prospects. Therefore, all allegations will be carefully considered and, if required, properly investigated to verify the facts, such that the allegations may be shown to be true or false.

4.3. Every endeavour will be made to resolve issues informally, where such issues are not

deemed to be of a serious nature. In these circumstances a note will be kept of any actions taken.

4.4. Exclusion from work will be used only in the most exceptional circumstances, and the

exclusion of the practitioner will not be view as the solution in itself. Furthermore, periods away from work will be kept to a minimum, through effective performance management arrangements, which will ensure that during an investigation contact with the practitioner is maintained and the need for continued exclusion is frequently reviewed.

4.5. Consultation with NHS Resolution Protect Practitioner Performance Unit (NHSR PPPU)

at an early stage, when action in relation to clinical concerns is being considered, and thereafter on a regular basis whilst the case in progressing. The underlying intention is that the early intervention of the Practitioner Performance Unit will help the Trust maintain momentum in resolving concerns about clinical competence, and, therefore reduce the number of doctors and dentists who are excluded from work for long periods of time.

4.6. Concerns relating to capability of doctors in training will be considered a training issue,

hence, with Director of Medical Education (DME) will be involved from the outset.

5. Purpose

The purpose of this policy and procedure is to help the Trust and its Responsible Officers to understand and enact their statutory duty to respond effectively to concerns about a doctor’s practise. The Responsible Officer Regulations (2010 amended in 2013) give specified senior doctors (responsible officers) in certain organisations (designated bodies) functions that will


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ensure that all doctors work within a managed environment, in which their performance, conduct and behaviour are monitored against agreed national standards1. It provides a framework, a model for establishing the level of concern, and lists the essential components of an organisational policy to support an effective, consistent and fair process. A flow chart outlining the process can be found in Appendix C. The policy and procedures described in this document provides assurance to the Trust Board that appropriate systems are in place to deal with concerns of a medical practitioner performance and conduct matters, so that patient safety and quality of care is maintained and that doctors who require supported to maintain fitness for purpose and fitness to practice standards.

6. General Principles Applicable to the Policy and Procedures

6.1. Confidentiality

The Trust will keep the details of cases, investigations and hearings under these procedures confidential, save where it is reasonable for the Case Manager or Case Investigator or other managers properly involved in these procedures to disclose such information in order to progress these procedures. No press notice should be issued, nor should the name of the Practitioner be released to the press with regard to any investigation or hearing. The Trust will only confirm that an investigation or hearing is underway. Practitioners and any other Trust employees should also maintain the confidentiality of case, investigations or hearings under these procedures.

6.2. Roles and Responsibilities

6.2.1. Chief Executive has overall responsibility for ensuring that patient safety is maintained through the appropriate corporate governance and that there are robust quality assurance systems in place to ensure monitoring of compliance and regular reviews of this policy. They are also responsible for delegating authority for exclusions.

6.2.2. Trust Board Chair will appoint a Non-Executive member who will oversee the

case and ensure that momentum is maintained.

This includes:

the concern is dealt with quickly and appropriately by the Case Manager, and that a proper audit trail is established to initiate and track progress of the investigation, its costs and resulting action;

the practitioner is kept well informed of the progress in dealing with the concern;

1 Where there are concerns about a doctor’s fitness to practice, the Regulations empower responsible officers to instigate

investigation of the doctor’s performance and to ensure that the appropriate action is taken. Where concerns are raised but are not of the degree at which referral to the GMC is considered necessary, responsible officers have a duty to investigate and to ensure that the appropriate action is taken. If the cause of concern is found to relate to the systems, team or processes as well as, or rather than, an individual doctor, the responsible officer has a duty to ensure that the designated body takes action to address any issues.


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where a restriction of duties, or exclusion is deemed appropriate, the practitioner is aware of their obligation to remain available for work during their normal contracted hours;

arrangements are made for the practitioner to be able to keep in contact with colleagues on professional developments, and take part in CPD and clinical audit activities, with the same level of support accorded to other practitioners; and

a mentor is appointed to provide support and ensure regular contact is maintained between the practitioner and the Trust, throughout the duration of the restriction/exclusion (assuming the practitioner is in agreement).

seeking reports regarding the continuation of any exclusion from work of the Practitioner and monitoring and reviewing the continuation of the exclusion;

considering any representations from the Practitioner about any exclusion; and

considering any representations about the investigation. 6.2.3. Medical Director and Responsible Officer will provide assurance to the Trust

Board that patient safety is being maintained through compliance with this policy. The Medical Director is the accountable officer for ensuring the principles of MHPS are applied within the Trust and for ensuring that medical practitioners maintain the required knowledge, skills, attitude, competence, value and behaviours consistent with providing high quality patient care. They will also be responsible for:

Overseeing the introduction and operational application of this policy

Ensuring the Trust has sufficient and adequately trained case managers and investigating officers and that they are supported in this role

Appointing appropriate Case Managers on a case by case basis 6.2.4. Director of Human Resources will ensure that the adequate Human Resources

support is readily provided to support the delivery and review of this policy. They will be responsible for identifying an operational lead for Medical HR who will provide operational support and guidance to the Medical Director.

HR Officers will support Case Managers, Investigating Officers and individual practitioners

6.2.5. Responsibilities of the Practitioner

The overarching objective of this policy is to maintain patient safety by supporting practitioners to act within the roles and responsibilities as outline in MHPS. The duty to protect patients is paramount. If a Practitioner has been excluded or had restrictions placed on their practice under these procedures, and where there is a concern that the Practitioner may be a danger to patients the Practitioner must:

Inform the Case Manager of any other organisation(s) with whom they undertake voluntary or paid work;

Seek the Case Manager's consent to continue any such work; and

Agree not to undertake any work in the affected area of practice with any other organisation, without the Case Manager’s consent.

6.2.6. Divisional Directors will ensure adequate resource (time and manpower) to

support the implementation and application of this policy. They will ensure that Case Managers and Investigating Officers are supported to undertake additional roles and that this is reflected in individual job plans.

6.2.7. Responsibilities of the Case Manager


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If, at any time, the Case Manager considers that a Practitioner could be a serious potential danger to patients or staff in the local organisation, in any other parts of the NHS or in the private sector or has been in breach of an undertaking, the Case Manager will:

Appoint a Case Investigator and supply them with Terms of Reference and establish timescales for completing the investigation.

Consider alternative to exclusion; exclusion should be seen as a last resort.

Receive Investigating Officers Report and take the most appropriate action

During exclusion ensure that: o contact is maintained with the practitioner for example receiving Trust

Bulletins, copies of Trust and departmental briefings, o the practitioner is enabled to participate in CPD activities o regular meetings are established o a remediation and rehabilitation plan is considered at the end of the

exclusion period e.g. appoint a mentor

Refer the Practitioner to his or her relevant regulatory body; and/or

Contact the Medical Director of NHS England (South) to consider whether an alert letter should be issued; and/or

Inform other individual relevant organisations of any restriction on practice or exclusion and provide a summary of the reasons for this.

It is the responsibility of the respective Case Manager to ensure the distribution of copies of relevant documentation including organisational change documents, to employees or to contact them directly by phone, e-mail or letter. Distribution of electronic bulletins, CEO conversation newsletter, policy amendments, professional guidelines changes are examples of such documentation and general communication relating to day-today issues that may affect them. For example, minutes of staff meetings, team briefing etc. The Case Managers should contact staff on at least a fortnightly basis and if necessary more frequently. An employee, who is subject to exclusion, has a duty to ensure reasonable contact is maintained with the Trust.

6.3. Working with other Organisations, Referrals to Regulators and Alert Letters

6.3.1. NHS Resolutions Practitioner Performance Advice Unit (formerly NCAS)

At any stage of a case under these procedures consideration should be given to whether to contact, seek the advice of and/or otherwise involve NHS Resolutions. This includes seeking telephone advice, supported local case management, clinical performance assessment, and support in implementing recommendations arising from assessment. A Practitioner undergoing a practitioner performance assessment must co-operate with any request to give an undertaking not to practise in the NHS or private sector other than their main place of NHS employment until the assessment is complete. A failure by a Practitioner to co-operate with a referral to NHS Resolutions may be seen as evidence of a lack of willingness by the Practitioner to work with the Trust to resolve performance difficulties. This may necessitate disciplinary action and consideration of referral to the GMC or GDC.


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6.4. The Right to be accompanied

At any stage in a conduct, capability or performance management procedure relating to a Practitioner, the Practitioner may be accompanied by a companion. The Practitioner’s companion may be a colleague, a friend, partner or spouse, or a representative who may be from or retained by a trade union or defence organisation. In a hearing, a representative will be entitled to present a case on behalf of the Practitioner, address the panel and question the management case and any witness evidence. 6.5. Termination of Employment with Disciplinary or Capability Issues Unresolved

In all cases where a Practitioner leaves employment before the conclusion of disciplinary or capability procedures, these procedures must be taken to a final conclusion and any appropriate action must be taken (such as referrals to a professional body, the Disclosure and Barring Service (DBS) or an alert letter), irrespective of the Practitioner’s personal circumstances. Every reasonable effort must be made to ensure the Practitioner remains involved in the process. If contact with the Practitioner has been lost, the Trust should invite them to attend any hearing by writing to both their last known home address and their registered address unless the two are the same. It may also be appropriate to email the Practitioner at a personal email address if known.

The overriding aim is to ensure the practitioner does not feel in any way abandoned, unsupported or devalued by the Trust during what is likely to be a period of uncertainty and personal anxiety. The practitioner will continue to be offered support via our Employee Assistance Programme and/or Occupational Health.

6.6. Supporting the Practitioner

Health and Wellbeing support will be offered to all Practitioners via the Employee Assistance Programme. Occupational Health will advise on any reasonable adjustments, which will need to be considered to enable the member of staff to attend for support and counselling.

7. Restriction of Practice and Exclusion from Work

7.1. When serious concerns are raised about a Practitioner, the Trust must urgently consider whether it is necessary to place temporary restrictions on the Practitioner’s practice. This might be to amend or restrict the Practitioner’s clinical duties; to obtain undertakings; or to exclude the Practitioner from the workplace either immediately

7.2. Under this policy, the following principles will always apply:

7.2.1. Exclusion of clinical staff from the workplace is a temporary expedient whilst action to resolve a problem is being considered;

7.2.2. Exclusion must be viewed as a precautionary measure and not a disciplinary action; and

7.2.3. Exclusion from work must be reserved for only the most exception circumstances

7.3. The purpose of exclusion is to:


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7.3.1. Protect the interests of patients, the practitioner, or other staff; and/or 7.3.2. Assist the investigation process when there is a clear risk that the

practitioner’s presence would impede the gathering of evidence

7.4. The Chief Executive has overall responsibility for managing exclusion procedures. The

Chief Executive will give authority to exclude to sufficient nominated roles, at an appropriately senior level, to ensure 24 hour availability of such a manager in the event of a critical incident. The Chief Executive has given authority to exclude to:

Executive Director or a nominated deputy

Medical Director or a nominated Deputy

Care Group Directors - for staff below the grade of consultant.

Senior Manager on-call (outside of normal working hours)

7.5. The Trust will always consider whether risks can be managed by restricting the practice

of the individual concerned, rather than resorting to exclusion. Where appropriate, the degree to which practice is restricted will be determined by the particular circumstances of each case. Ways in which risks may be managed by restricting practice might include:

7.5.1. Restricting the Practitioner’s activities to administrative, research or audit,

teaching and other educational duties. By mutual agreement the latter might include some formal retraining or re-skilling.

7.5.2. Sick leave for the investigation of specific health problems, where this is possible under the Trust’s Attendance Management Policy.

7.5.3. Medical or clinical supervision of the Practitioners clinical duties 7.5.4. Restricting the Practitioner to certain forms of clinical duties 7.5.5. Where there are capability concerns, agreeing an action plan with the

Practitioner with the advice of NHS Resolutions or an agreed referral of the Practitioner to NHS Resolutions for assessment.

7.6. Exclusion from practice, immediate or formal, must be managed in accordance with the

following requirements:

7.6.1. Case Manager will involve of NHS Resolutions. 7.6.2. Case Manager will notify the practitioners area of work, so they can make

arrangements to cover the absence and keep them informed regularly 7.6.3. The Case Manager will notify the practitioner of any plans for exclusion or

restrictions on practice from the outset; 7.6.4. A Non-Executive Director Board is appointed by the Trust Chair, to monitor

the exclusion and subsequent action; 7.6.5. Exclusion will be actively reviewed continuously to consider either renewal or

cessation of any exclusion and a right to return to work should be afforded to the individual concerned if the necessary reviews are not carried out;

7.6.6. A programme for return to work will be facilitated if the case is not referred to disciplinary procedures or performance assessment.

7.7. All exclusion decisions and review meetings will be documented using the template in appendix D and E.


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8. Process Requirements

8.1. Identification of conduct, capability and performance issues

8.1.1. The management of performance concerns is a continuous process that is

intended to identify problems. Numerous ways exist in which concerns may be raised about a practitioner’s performance through which remedial and supportive action can be taken. This should be undertaken quickly before the problem becomes serious or patient is harmed, and which need not necessarily require formal investigation or request for disciplinary procedures, Performance issues may be identified through:

Concerns expressed by other NHS professional, healthcare managers, students, trainees and non-clinical staff

Review of performance against job plans, annual appraisal or revalidation

Monitoring of data relating to clinical performance and quality of care

Clinical governance, clinical audit and other quality improvement activities

Complaints about care by patients or relatives of patient

Information regarding regulatory bodies

Litigation following allegations of negligence

Information for the police or coroner

Court judgments 8.1.2. The Case Manager may consider that an informal route is appropriate where

the concerns are not serious and do not give rise to concerns for patient safety.

Concerns with regards to an individual practitioner’s capability may emerge in relation to a number of factors, including:

out of date clinical practice;

inappropriate clinical practice arising from a lack of knowledge or skills that put patients at risk;

incompetent clinical practice;

inability to communicate effectively;

inappropriate delegation of clinical responsibility;

inadequate supervision of delegated clinical tasks; or

ineffective clinical team working skills. Concerns at work fall into three main categories:

Capability

Conduct

Health 8.1.3. Inevitably, some cases will involve both misconduct and capability issues.

These cases are likely to be complex and difficult to manage. Therefore where a case covers more than one category of problem, they will usually be combined and considered under a capability hearing.

However, there may be occasions where it is necessary to pursue a misconduct issue and a capability issue relating to the same practitioner separately. In these difficult cases the Case Manager, in consultation with the NHS Resolutions, where appropriate and Trust’s employment law advisers, will recommend the most appropriate course of action.


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8.1.4. The Trust will ensure that investigations are conducted in a way that does not

discriminate on the grounds of age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; or sexual orientation race, gender, or other grounds.

8.1.5. Concerns about practitioners in a training grade

Where there are concerns about a doctor or dentist in training, the Case Manager will inform the Postgraduate Dean as soon as possible and within a week of receipt of a written complaint.

Concerns about capability relating to a doctor or dentist in a recognised training grade will be considered initially as a training issue and dealt with through the Annual Review of Competence Progression Programme (ARCP process) in conjunction with the educational supervisor and college or clinical tutor, with close involvement of the Postgraduate Dean from the outset.

8.2. Procedure for dealing with concerns When a concern arises relating to a particular doctor or dentist, the following procedure will be followed. For further guidance refer to Doctors and Dentists Capability Toolkit.

Stage 1 (informal Management)

8.2.1. The matter will be brought to the immediate attention of the appropriate Clinical Lead or their elected deputy, at the earliest opportunity. Addressing matters informally is good practice and efficient.

Informal action should fully explore the issue fairly and objectively. Informal action should:

Set out clearly expectations. The individual should fully understand the outcome and be clear of what is expected of them.

The goal should be to bring about improvement in performance

The informal action outcome should be clearly documented with a copy given to the practitioner, who agrees the objectives

It should be clear that this is not formal disciplinary action.

In cases of serious allegations and or serious concerns with conduct it may not be appropriate to resolve the issues through informal action. Where appropriate the issue may be referred to the Disclosure and Barring Service (DBS) or relevant professional body.

8.2.2. Meeting with the individual

Where the clinical/line manager considers that action needs to be taken to encourage an employee to improve conduct, they may hold an informal discussion with the employee in private at the first available opportunity. HR involvement should be considered to ensure consistency.

This meeting will be used to:


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Bring to the employee’s attention the respects in which it is thought that the individual’s conduct is not acceptable.

To ascertain whether the employee thinks that there is a problem.

To listen to any explanations or statements made by the employee in relation to the information received.

To discuss support that can be offered and to explore what support there may be.

To discuss how the employee should seek to improve and the timescale for improvement.

To set clear SMART (Specific, Measurable, Attainable, Realistic and Time Limited) objectives.

If, after reviewing the evidence, it may be appropriate to orally warn the individual that continued non-delivery of agreed standards may lead to formal disciplinary action and eventually the possibility of dismissal.

To put the verbal advice in writing within the summary of the discussion and give a copy to the staff member. This will include a copy of the completed file note (a file note template can be found the Doctors Conduct and Capability Toolkit resources on the HR Portal).

Once all of the above have been explored thoroughly it is expected that there will be

the following outcomes from the meeting:

Clear understanding of the situation from a staff and managerial perspective.

Clear understanding from the individual regarding standards of conduct that are expected.

Clear understanding from management of the support, guidance and supervision the staff member may expect to receive to achieve the agreed objectives.

Clear objectives for the individual, with timescales.

A mechanism for review of progress.

A programme of support to help improve conduct issues where appropriate.

A letter to the member of staff summarising the key points described above that have been agreed by the staff member and management. A copy of any notes or file note should be enclosed with the outcome letter. (Note: The letter is not formal disciplinary action and this should be made clear).

Stage 2 (escalating the concern)

8.2.3. The matter will be brought to the immediate attention of the appropriate Clinical Lead or their elected deputy, at the earliest opportunity. Should the matter relate to conduct or performance of a Clinical Lead, then the Medical Director must be informed. If the concern relates to the Executive Medical Director then the Chief Executive or their nominated deputy will be informed. At this point the nature of the concerns should be clarified.

8.2.4. The duty to protect patients is paramount. When a serious concern is raised

about a practitioner, urgent consideration will be given as to whether it is necessary to put in place temporary restriction on their practice in place. This might include:

amending or restricting their clinical duties,

obtaining undertakings or

providing for the exclusion of the practitioner from the workplace,

a period of clinical supervision,


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mentoring,

team facilitation or

mediation. 8.2.5. Immediate Exclusion In exceptional circumstances when serious concerns have been raised, a manager with the authority to exclude may decide to immediately exclude the Practitioner for a period of no more than two weeks in order: to protect the interests of patients or other staff, for example

8.2.5.1. After a critical incident, or breakdown in relationships between a

Practitioner and the rest of the team; or 8.2.5.2. Following a critical incident when serious allegations have been made; 8.2.5.3. Where there has been a serious breakdown in relationships between

a colleague and the rest of the team 8.2.5.4. Where the presences of the practitioner is likely to hinder the

investigation.

8.2.6. In the event of immediate exclusion, the Medical Director must be informed at

the earliest opportunity by the excluding manager.

8.2.7. Such an exclusion will allow a more measured and dispassionate

consideration to be undertaken, following an incident. This ‘breathing space’ will be used to carry out a preliminary situation analysis, to contact the NHS Resolution for advice and to convene a case conference. The person making the immediate exclusion must explain to the practitioner:

8.2.7.1. in broad terms, why there is a need to make an immediate exclusion

(there may be no formal allegation at this stage); 8.2.7.2. that they will be informed, at the earliest opportunity, when they will be

called back to attend a further meeting: This will be at the earliest opportunity, but in any case, no longer than one working week following immediate exclusion, at which time the practitioner will be notified of the precise nature of the allegation, including specific incidents, dates, persons involved, etc.); and

8.2.7.3. that immediate exclusion in no way amounts to disciplinary action.

8.2.8. No practitioner will be excluded from work, other than through a formal

procedure, no ‘informal’ exclusion, of whatever type, will be invoked by the Trust. A formal exclusion may only take place after the Case manager has first considered whether there are reasonable and proper grounds to exclude.

8.2.9. The excluding manager must explain to the Practitioner why the exclusion is

being made in broad terms and set a date for a further meeting within two weeks and their rights to of representation at the meeting.

8.2.10. The Case Manager will notify the Practitioner of the exclusion in writing. 8.2.11. Where, following formal investigation, a restriction of practice is

recommended. The Case Investigator will explore and report on the circumstances that led to the excluded practitioner and provide factual


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information to assist the Case Manager in reviewing the need for exclusion and in provide progress reports to the Medical Director.

8.2.12. The Case Manager Report should provide sufficient information for a decision

to be made as to whether:

8.2.12.1. The allegation appears to be unfounded 8.2.12.2. There is a misconduct issue, or 8.2.12.3. There is a concern about the practitioner’s capability, or 8.2.12.4. The complexity of the case warrants further detailed investigation

before advice can be given on the way forward and what need to be inquired into.

8.2.13. Any exclusion from practice must be managed in accordance with the following requirements:

any initial, immediate exclusion will last no longer than two weeks;

NHS Resolutions will be notified of any plans for exclusion or restrictions on practice from the outset;

formal exclusion, if necessary, will be for a period of up to four weeks and will then be subject to review;

advice on the case management plan must be sought from the NHS Resolutions;

a Board member will be appointed to monitor the exclusion and subsequent action;

active review will continue to consider either renewal or cessation of any exclusion and a right to return to work should be afforded to the individual concerned if the necessary reviews are not carried out;

management of the case will be subject to performance monitoring; and

a programme for return to work will be facilitated if the case is not referred to disciplinary procedures or performance assessment.

8.2.14. Should it be agreed that it would be appropriate for the matter to be dealt with

informally then this course of action should be pursued at this stage.

Stage 3 (appointing a Case Manager)

8.2.15. If it is agreed that the matter should be dealt with formally, the Medical Director will be notified immediately and, on behalf of the Chief Executive, and in consultation with the HR practitioner, will appoint a medically or dentally qualified senior clinician as appropriate to act as ‘Case Manager’.

8.2.16. The Case Manager will be appropriately experienced or trained in the subject

under investigation to enable them to carry out the role when required. The Medical Director, or appointed representative, will act as Case Manager in cases involving Consultants.

8.2.17. The responsibilities’ of the Case Manager are outlined in section 6.2.7 of this policy.


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Stage 4 (identifying if there is a problem)

8.2.18. The first task of the Case Manager is to identify the nature of the problem or concern, and to assess the seriousness of the issue on the information available and the likelihood that it can be resolved without resorting to formal disciplinary or capability procedures. This decision will be taken in consultation with the HR practitioner assigned to the case, the Medical Director or the appointed nominees and NHS Resolutions where appropriate.

8.2.19. The Case Manager may explore the potential problem with NHS Resolutions

to consider different ways of addressing it themselves. In so doing, the Case Manager may possibly recognise the problem as being more to do with work systems than the practitioner’s performance, or see a wider problem needing the involvement of the outside body, other than NHS Resolutions.

8.2.20. The Case Manager will not automatically attribute an incident to the actions,

failings or acts of an individual alone. Root-cause analysis of adverse events should be conducted as these frequently show that causes are more broadly based and can be attributed to systems or organised failures, or demonstrate that they are untoward outcomes which could not have been predicted and are not the result of any individual or systems failure.

Each will require appropriate investigation and remedial actions. The NHS advocates an open and fair culture, which encourages doctors and dentists and other NHS staff to report adverse incidents and other near misses, and the Case Manager will consider the need to highlight any concerns they have about systems or organisational failures.

8.2.21. Having taken on board relevant guidance and support available to them,

including discussions the case with the NHS Resolutions, the Case Manager must decide whether:

There is a case to answer; or

The issue is one that should be resolved through an informal approach; or

The issue is such that a formal investigation is needed. 8.2.22. Where the issue involved the exercise of medical and dental duties, or where

the nature of the issue is such that the Case Manager determines it may lead to either misconduct or capability proceedings, the case manager may, after discussion with the HR practitioner assigned to the case, appoint an appropriately experienced or trained person as ‘Case Investigator’. If the investigation relates to capability or professional conduct, the investigator must be medically or dentally qualified with appropriate knowledge and experience to undertake the role2.

8.2.23. Where the issue is clearly one of alleged misconduct or gross misconduct,

due to factors other than those directly involving the exercise of medical and dental duties (e.g. bullying; assault; theft; fraud; failure to fulfil contractual obligations; refusal to comply with the reasonable requirements of the Trust;

2 This is will be determined on a case by case basis.


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non-attendance at work; the commission of criminal offences outside the place of work which may, in particular circumstances, amount to misconduct or gross misconduct), such issues will be handled under the Trust Disciplinary Policy, which applies to all staff.

8.2.24. The procedures associated with the Disciplinary Policy require that a full and

thorough investigation is conducted. The Case Manager and designated HR practitioner are responsible for ensuring these procedures are correctly followed, and the practitioner is kept properly informed about the details of the allegations and the process. The practitioner will also be advised whether the alleged offence amounts to gross misconduct, which if proven may lead to summary dismissal.

8.2.25. The Case Investigator is responsible for leading the investigation into the

concerns about the practitioner, establishing the facts, and reporting the findings.

Stage 5 (investigation)

8.2.26. The Case Manager will inform the practitioner in writing, as soon as practicable within 10 working days of their decision to request an investigation, unless there are unforeseen circumstances which preclude this. The relevant Practitioner will be informed that:

An investigation is to be undertaken;

Of the name of the Case Investigator; and

Of the specific allegations or concerns that have been raised

The information provided to the practitioner will be as comprehensive as possible, in

terms of incidents, dates persons involved etc.

8.2.27. The practitioner will be afforded the opportunity to put their view of events to the Case Investigator and informed of their right, at any stage of this process (or subsequent disciplinary action) to be accompanied in any interview or hearing by a companion (see 6.4).

8.2.28. If during the course of the investigation it transpires that the case involves

more complex clinical issues than first anticipated, the Case Manager should consider whether an independent practitioner from another NHS body should be invited to assist.

8.2.29. The Case Investigator will carry out an unbiased investigation into the

allegations and collect and document evidence to establish the relevant facts. In carrying out the investigation, the Case Investigator must:

Give the Practitioner the opportunity to see any documentation relating to the case and a list of the people the Case Investigator will interview:

interview sufficient witnesses and obtain sufficient written statements to support his or her findings;

interview the Practitioner and give the Practitioner the opportunity to put his or her view of events;

If a question of clinical judgement is raised, seek advice from a suitable senior medical or dental employee of the Trust, or where this is not possible, of another Trust;


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Maintain the confidentiality of the investigation; and

Assist the Non-Executive Member to review the progress of the case.

Ensure a written record of the investigation is kept 8.2.30. The practitioner under investigation should be given the opportunity to give

the Case Investigator a proposed list of individuals that the practitioner would like to be interviewed in the investigation. There would need to be a reason given why the practitioner wanted each witness interviewed and the Case Investigator would determine the weight of evidence from each witness.

8.2.31. The Case Investigator should complete the investigation within four weeks of

appointment and submit their report to the Case Manager within a further five days. The Case Manager will review the report. In exceptional circumstances, for example in particularly complex cases or due to annual leave, these deadlines may be extended.

8.2.32. Where it is determined that there is a case to answer, the Case Manager, and

where appropriate NHS Resolutions, will consider whether restrictions on practice or exclusion from work should be considered, notwithstanding that this action may already have been taken.

8.2.33. When a report of the investigation has been submitted by the Case

Investigator, the Case Manager will give the practitioner the opportunity to comment in writing on the factual content of the report. Comments in writing from the practitioner, including any mitigation, must normally be submitted to the Case Manager within 10 working days of the date of receipt of the request for comments. In exceptional circumstances, for example in particularly complex cases or due to annual leave, the deadline for comments from the practitioner will be extended.

8.2.34. If the practitioner (or their representative) fails to provide his or her comments

within the 10 working days’ time limit or such other time limit as has been agreed, the Case Investigator will finalise his/her report, recording the fact that it has not been possible to obtain the practitioner’s comments.

Stage 6 (outcome)

8.2.36. The Case Manager will decide what further action is necessary, taking into

account the findings of the report, and where appropriate advice from NHS Resolutions.

8.2.37. The Case Manager will inform the practitioner of the outcome of the

investigation, namely:

No further action is needed;

To consider whether there is a case of misconduct or capability

There are concerns about the practitioner’s health which require a referral to Occupational Health;

There are performance concerns to be further explored with NHS Resolutions;

Restrictions on practice or exclusion from work should be considered;

The concerns should be referred to the General Medical Council or General Dental Council;


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The matter should be put before a capability panel. 8.2.38. When agreeing with the Practitioner the involvement of NHS Resolutions to

undertake a formal clinical performance assessment it will be helpful to identify the underlying cause of the problem and possible remedial steps. The outcome of any relevant local investigation should be made available to NHS Resolutions.

When deciding the most appropriate informal action, the Case Manager should consider the following options:

Remediation is the process of addressing performance concerns (knowledge, skills,

and behaviours) that have been recognised, through assessment, investigation, review or appraisal, so that the practitioner has the opportunity to return to safe practice. It is an umbrella term for all activities which provide help; from the simplest advice, through formal mentoring, further training, reskilling and rehabilitation:

Reskilling is the process of addressing gaps in knowledge, skills and/or behaviours

which result from an extended period of absence (usually over 6 months) so that the practitioner has the opportunity to return to safe practice. This may be, for example, following suspension, exclusion, maternity leave, career break or ill health (but see below)

Rehabilitation is the process of supporting the practitioner, who is disadvantaged by

chronic ill health or disability, and enabling them to access, maintain or return to practice safely.

Any decisions relating to remediation funding will be considered on a case by case

basis and will be based on a reasonable organisational response.

8.2.39. The Case Manager will inform the practitioner in writing of the outcome of the

investigation, enclosing a copy of the report together with the statements and other evidence gathered in the course of the investigation. The Case Manager must give the reasons for the decision.

8.2.40. The practitioner will also be notified if there are serious concerns that should

be referred to the GMC or GDC, albeit that the Case Manager may have considered referral to be unnecessary at an earlier stage of the process.

8.3. Formal Exclusion

In cases where disciplinary procedures are being followed, and where a return to work is considered inappropriate, exclusion may be extended for four-week renewable periods. The exclusion will still only last for four weeks at a time and be subject to review. The exclusion will be lifted, and the practitioner is allowed to return to work, with or without conditions placed upon their employment, as soon as the original reasons for exclusion no longer apply.

8.3.1 If the Case Manager considers that the exclusion will need to be extended

over a prolonged period outside of his or her control (for example because of a police investigation), the case must be referred to the NHS Resolution, who


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will advise whether the case is being handled in the most effective way and suggest possible ways forward. However, even during this prolonged period, the principle of four-week ‘renewability’ will be adhered to. 8.3.1.1. If, at any time after the practitioner has been excluded from work,

investigation reveals that either the allegations are without foundation or that further investigation can continue with the practitioner working normally, or with restrictions, the Case Manager must lift the exclusion, inform the NHS Resolutions and make arrangements for the practitioner to return to work with any appropriate support, as soon as practicable.

8.3.1.2. The Trust Board will be informed of any exclusion at the earliest

opportunity. The Board has a responsibility to ensure that the Trust’s internal procedures are being followed, but will not be advised of the details of the case. They will therefore:

be advised of the exclusion and any subsequent extensions to the period of exclusion, giving reason for the continuation. The Director of HR and OD will receive regular updates via the Senior HR Manager – Medical HR, and provide this information to the Board; and

receive a monthly statistical summary showing all exclusions, with their duration and number of times the exclusion has been reviewed and extended

8.3.1.3 The Case Manager will review the exclusion before the end of each

exclusion period (which may be up to four weeks each), and report the outcome to the Medical Director. This report is advisory; it is for the Case Manager to decide on the next steps, as appropriate. The exclusion should be lifted, and the practitioner allowed to return to work, with or without conditions placed upon their employment, at any time the original reasons for exclusion no longer apply and there is no other reasons for exclusion. The Trust must take review action before the end of each four-week period:

8.3.1.4 Where a practitioner considers that a decision to exclude or restrict

practice has been applied unfairly or that there are other reasonable alternatives, then the practitioner may apply to have these reasons considered.

9. Allegations of Criminal Acts

9.1. If a Practitioner is charged with or convicted of a criminal offence, the Trust must consider whether this might affect his or her suitability for employment and whether the Practitioner poses a risk to patients or colleagues. If so the Trust should:

instigate its own investigation under these procedures;

consider whether it is necessary to exclude or restrict the practice of the Practitioner;

Explain to the Practitioner the reasons for taking such action.


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9.2. Where the Trust’s investigation establishes a suspected criminal action in the UK or abroad, this must be reported to the police. In cases of suspected fraud, the Counter Fraud Service must be contacted.

9.3. Where a police investigation is underway, the Trust’s investigation should only proceed

in respect of those aspects of the case which are not directly related to the police investigation. The Trust must consult the police to establish whether an investigation into any other matters would impede their investigation.

9.4. If the police decide not to pursue criminal allegations against the Practitioner, or if the

Practitioner is acquitted of criminal charges, which might affect his or her suitability for employment, the Trust may nonetheless decide to proceed with its own investigation into the same or related matters if it considers that there is sufficient evidence to do so, bearing in mind the high burden of proof in criminal proceedings and the Trust’s duty to ensure patient safety.

9.5. Where criminal charges are dropped and, subject to the Trust’s own proposals to

investigate and / or exclude the Practitioner, the presumption will otherwise be that the Practitioner returns to work.

9.6. There are some criminal offences that, if proven, could render a doctor or dentist

unsuitable for continued employment. In all cases, the Trust, having considered the facts, will need to determine whether the practitioner poses a risk to patients or colleagues and whether their conduct warrants internal investigation

9.7. When the Trust has refrained from taking action pending the outcome of a court case

and the practitioner is acquitted, but it is considered there is enough evidence to suggest a potential danger to patients, then the Trust has a public duty to take action to eliminate this risk.

9.8. Where there are insufficient grounds for bringing charges or the court case in withdrawn,

there may be grounds for considering police evidence where the allegations would, if proven, constitute misconduct, bearing in mind that the evidence has not been tested in court. It will be made clear to the police that any evidence they provide and is used in the Trust’s case, must be made available to the practitioner concerned.

9.9. Where charges are dropped, the presumption is that the practitioner will be reinstated.

10. Formal Hearings – capability and disciplinary

10.1 Capability Hearing Procedure - the following procedure will be followed in the event that a formal capability hearing is required:

10.1.1 The Case Manager will notify the practitioner in writing of the decision to arrange a capability hearing. This notification should be made within at least 20 days before the hearing and include details of the allegations and the arrangements for the proceeding, including the practitioners right to be accompanied, copies of relevant documents and evidence.

10.1.2 Wherever practicable, all parties must exchange any documentation, including

witness statements, on which they wish to rely in the proceedings no later than 10 working days before the hearing. In the event of late evidence being


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presented, the chair of the panel will consider whether the evidence can be allowed or if a new date for the hearing should be set.

10.1.3 Should either party request a postponement to the hearing, the Case

Manager will be responsible for ensuring that a reasonable response is made and that time extensions to the process are kept to a minimum. The Trust retains the right, after a reasonable period (not normally less than 30 working days), to proceed with the hearing in the practitioner’s absence; The Trust will always act reasonably in deciding to do so.

10.1.4 Should the practitioner’s ill-health prevent the hearing taking place, the Trust’s

usual sickness absence procedures will be invoked. The sickness absence procedures will take precedence over capability procedures and the Trust will take reasonable steps to give the employee time to recover and attend a hearing. Guidance will be sought from the Occupational Health Service in terms of the expected duration of the illness and any consequences it may have for the capability management process.

10.1.5 If, in exceptional circumstances, a hearing proceeds in the absence of the

practitioner, for reasons of ill-health, the practitioner should have the opportunity to make written submissions and/or have a representative attend on their behalf.

10.1.6 Witnesses who have made written statements at the investigation stage may,

but will not necessarily, be required to attend the capability hearing. Following representations from either side contesting a witness statement which is to be relied upon in the hearing, the chairperson may invite the witness to attend. However, if evidence is contested and the witness is unable or unwilling to attend, the panel will reduce the weight given to the evidence as there will not be the opportunity to challenge it properly.

10.1.7 A final list of witnesses to be called must be given to both parties not less than

two working days in advance of the hearing. If witnesses required to attend the hearing choose to be accompanied, the person accompanying them will not be able to participate in the hearing.

10.1.8 The capability/conduct panel will consist of three persons:

Executive Director of the Trust who will act as the chair of the panel,

One other member of the Trust Board, and

One medical or dental practitioner not employed by the Trust.

10.2. The panel will also be advised by a senior HR representative, and by a senior medical

or dental clinician from the same specialty as the practitioner concerned, but from another NHS employer. As far as is reasonably possible or practicable, no member of the panel or advisor to the panel should have been previously involved in the investigation. It is important that the panel is aware of the typical standard of competence required of the grade of doctor in question. If, for any reason, the senior clinician is unable to advise on the appropriate level of competence, a doctor from another NHS employer in the same grade as the practitioner in question should be asked to provide advice.


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10.3. Whilst it is for the Trust to decide on the membership of the panel, the practitioner may raise an objection to the choice of any panel member, within 5 working days of notification. The Trust will then review the situation and take reasonable measures to ensure that the membership of the panel is acceptable to the practitioner. It may be necessary to postpone the hearing while this matter is resolved. The Trust will provide the practitioner with the reasons for reaching its decision, in writing, before the hearing takes place.

10.4. The practitioner will be informed of their right to be accompanied during the hearing by

an appropriate representative. The representative will be entitled to present a case on behalf of the practitioner, address the panel and question the management case and any witness evidence as appropriate.

10.5. The panel will have the power to make a range of decisions including the following:

no action required;

express requirement that there must be an improvement in clinical performance within a specified time scale, with a written statement (to remain on file for 6 months) of what is required and how it might be achieved;

first written warning (to remain on file for 12 months) that there must be an improvement in clinical performance within a specified time scale, with a statement of what is required and how it might be achieved;

final written warning (to remain on file for 12 months) that there must be an improvement in clinical performance within a specified time scale, with a statement of what is required and how it might be achieved; or

Dismissal on the grounds of capability, misconduct or gross misconduct

10.6. The decision of the panel will be communicated to those parties present as soon as

possible and normally within 5 working days of the hearing. Because of the potential complexities of the issues under deliberation and the need for detailed consideration, the parties should not necessarily expect a decision on the day of the hearing.

10.7. The decision will be confirmed in writing to the practitioner. This notification will include

reasons for the decision, clarification of the practitioner’s right of appeal and notification of any intent to make a referral to the GMC/GDC or any other external/professional body.

10.8. The practitioner has the right to appeal against the decision, in accordance with the

appeals procedure.

11. Allegations of Professional Misconduct

Allegations of professional misconduct should be interpreted to mean allegations which are likely to require an element of clinical judgment which only doctors or dentists are professionally qualified to make, as opposed to other Trust employees, to investigate or adjudicate upon.


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Where the matter involves allegations of professional misconduct, the Case Manager may seek advice from NHS Resolutions. The Case Investigator must obtain appropriate independent professional advice during the investigation. 11.1. Disciplinary Hearing Procedure matters of misconduct will be dealt with in

accordance with the Trust’s Disciplinary Procedure. Particular examples of misconduct by a Practitioner may include failures to:

11.1.1. Fulfil contractual obligations, such as regular non-attendance at ward rounds

or clinics, or not taking part in clinical governance activities. 11.1.2. Give proper support to other staff, including doctors or dentists in training. 11.1.3. Comply with the requirements of the GMC’s Good Medical Practice or the

GDC’s Standards for Dental Professionals or other relevant code of professional conduct.

11.2. If the Practitioner considers that a case has been wrongly classified as misconduct, he

or she may raise a grievance or make representations to the Non-Executive Member. 11.3. The Trust may decide not to instigate separate procedures, but to deal with any such

complaint within the capability process as appropriate. 11.4 The panel at any hearing under this procedure must include a member who is

medically or dentally (as appropriate) qualified and who is not currently employed by the Trust.

12. Procedure to be followed at hearings

The Chair will be responsible for the conduct of the hearing, which should not be conducted overly formally, but should give the Practitioner every reasonable opportunity to present his or her case.

The panel, its advisers, the Case Manager, the Practitioner and any companion or representative of the Practitioner will be present throughout the hearing. Witnesses should only attend only to give their evidence and answer questions by all parties and the panel.

Subject to any alterations the hearing will ordinarily proceed as follows:

Chair introduces those present, summarises why the hearing has been convened and explain how the hearing will be conducted. The chair will also explain that the Panel Co-ordinator will make non-verbatim notes of the proceedings.

The Case Manager will present the management case; call any witnesses to be questioned by all parties and the panel; and provide any clarification requested by the panel.

Practitioner and their representative are given the opportunity to ask any questions of the Case Manager and witnesses

The panel members are invited to as questions of the Case Manager and witness.


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The Practitioner, or his or her companion or representative, will present his or her case; call any witnesses to be questioned by all parties and the panel; and provide any clarification requested by the panel.

The Case Manager and then the Practitioner, or his or her companion or representative, will make a brief closing statement (which may include any mitigation in the Practitioner’s case)

The panel members are invited to ask questions of the practitioner, their representative and witness.

The Case Manager and the Practitioner will be asked to sum up.

Both parties are asked to leave the hearing, whilst the panel members confer in private, but to be available to return should the panel need to clarify any points of uncertainty.

The panel makes its decision and both parties are recalled to be informed, by the Chair, of the decision.

13. Appeals against Capability Decisions

13.1. The appeals procedure provides a mechanism for practitioners who disagree with the

outcome of a panel decision to have an opportunity for the case to be reviewed. The appeal panel will need to establish whether the Trust’s procedures have been adhered to and that, in arriving at their decision, the panel acted fairly and reasonably, based upon:

a fair and thorough investigation of the issue;

sufficient evidence arising from the investigation or assessment on which to base the decision; and

whether, in the circumstances, the decision was fair and reasonable, and commensurate with the evidence heard.

13.2. The panel may also hear new evidence submitted by the practitioner and consider

whether it might have significantly altered the decision of the original hearing. The panel, however, will not re-hear the entire case.

13.3. The predominant purpose of the appeal is to ensure that a fair hearing was given to

the original case and a fair and reasonable decision reached by the hearing panel. The appeal panel has the power to confirm or vary the decision made at the capability hearing, or order that the case is re-heard. Where it is clear in the course of the appeal hearing that the proper procedures have not been followed and the appeal panel determines that the case needs to be fully re-heard, the chairman of the appeal panel will have the power to instruct a new capability hearing.

13.4. Where the appeal is against dismissal, the practitioner will not be paid during the

period of appeal, from the date of termination of employment. Should the appeal be upheld, the practitioner would normally be reinstated and will receive backdated pay, to the date of termination of employment. Where the decision is to re-hear the case,


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the practitioner will also normally be reinstated, subject to any conditions or restrictions in place at the time of the original hearing, and will receive backdated pay, to the date of termination of employment.

13.5. It is in the interests if all concerned that appeals are heard speedily and as soon as

possible after the original hearing. Wherever practicable, the following timetable will apply:

appeal by written statement to be submitted to the designated appeal person, normally the HR Officer supporting the case, within 20 working days of the date of the written confirmation of the original decision;

hearing to take place within 25 working days of date of lodging appeal;

decision reported to the appellant and the Trust within 5 working days of the conclusion of the hearing.

13.6. In all cases, the timetable will be agreed between the Trust and appellant and

thereafter varied only by mutual agreement. The Case Manager is responsible for ensuring that extensions are absolutely necessary, and kept to a minimum.

13.7. All parties should have all documents, including witness statements, from the previous

capability hearing together with any new evidence. 13.8. The appeal panel may call witnesses of its own volition, but must notify both parties

and provide them with a written witness statement at least 10 working days before the hearing. The relevant statements should normally be obtained by a party not previously involved in the case. Exceptionally, where during the course of the hearing the appeal panel determines that it needs to hear the evidence of a witness not called by either party, then it will have the power to adjourn the hearing to allow for a written statement to be obtained from the witness and made available to both parties before the hearing reassembles.

13.9. Capability Appeal Panel

The appeal panel should comprise three people who have not had any previous direct involvement in the subject of the appeal (although it should be noted that they might be called as a witness at the Appeal stage), including (but not exhaustive):

An Independent Chair chosen from the list drawn up by the NHS Appointments Commission. The list is administered by NHS Employers. The HR Officer will be responsible for contacting NHS Employers at this email address: [email protected]

A Director of the Trust who has not been involved in the case.

A medically or dentally qualified (as appropriate) person who is not employed by the Trust with appropriate training for hearing an panel

Every effort should be made to ensure that the panel members are acceptable to the appellant.

The appeal panel should seek specialist advice from:

mailto:[email protected]


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o A Consultant (or appropriate senior practitioner in the case of a dentist) from the same specialty or subspecialty as the Practitioner, but from another Trust;

o A Senior Human Resources specialist; and o If the medically or dentally qualified panel member from another Trust

is unable to advise on the appropriate level of competence, a practitioner from another Trust in the same grade as the Practitioner.

It is important the panel is aware of the typical standard of competence required of the grade of doctor in question. If, for any reason, the senior clinician is unable to advise on the appropriate level competence, a doctor from another NHS employer in the same grade as the practitioner in question will be asked to provide advice.

13.10 Process of the Appeal Hearing 13.10.1. Both parties should have the opportunity to present evidence and make

representations to the appeal panel and should answer questions from the other party and the panel. When all the evidence has been presented, both parties NHS England (South) will briefly sum up (this may include any evidence in mitigation for the Practitioner).

13.10.2. The appeal panel can also hear new evidence submitted by the Practitioner

and consider whether it might have significantly altered the decision of the original panel. However, the appeal panel should not rehear the entire case.

13.10.3. The appeal panel may decide to adjourn the appeal hearing or to order a

rehearing of the original capability hearing if:

during the course of the appeal it decides that it needs to hear or obtain the witness statement of a witness not called by either party (which should be provided to the parties before the hearing reconvenes), or

new evidence needs to be presented and is sufficiently important and relevant to warrant an adjournment or re-hearing.

13.10.4. The appeal panel must establish whether the Trust’s procedures have been

adhered to and that the panel’s decision was fair and reasonable in the circumstances and based on a fair and thorough investigation and sufficient evidence.

13.11. Decision of the appeal panel The appeal panel should adjourn to make its decision in private. The written decision should be sent to the Practitioner and the Case Manager within 5 working days of the hearing. The appeal panel may:

Confirm or vary the decision made by the original panel; and/or

Reinstate a dismissed Practitioner, in which case the Practitioner must receive full pay since their dismissal; or

Order that the case is reheard, where proper procedures have not been followed, in which case a dismissed Practitioner should be reinstated subject to any conditions or restrictions in place at the time of the original hearing in accordance with these procedures.


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14. Handling Concerns about a Practitioner’s Health

14.1. A wide variety of health problems can have an impact on an individual’s clinical

performance. These conditions may arise spontaneously or be as a consequence of work place factors such as stress. The underlying principle for dealing with individuals with health problems is that, wherever possible and consistent with reasonable public protection, they should be treated, rehabilitated or re-trained, and kept in employment, rather than be lost from the NHS.

14.2. Matters relating to a Practitioner’s ill-health and sickness absence should generally be

dealt with in accordance with the Trust’s Attendance Management Policy, subject to the additional requirements set out in this section. Where there is any conflict between these, the provisions of this section should prevail.

Wherever possible, subject to the need to not put patients or colleagues at risk, a

Practitioner with health problems should be treated, rehabilitated, re-trained or given reasonable adjustments to mitigate against the effects of a disability and kept in employment, rather than be lost from the NHS.

14.3. At all times, the practitioner will be supported by the Trust and the Occupational Health

Service, who will ensure that the practitioner is offered every available resource to be able to return to practice, where appropriate. The Trust will consider what reasonable adjustments might be made to their workplace conditions, or other arrangements. Examples of reasonable adjustment include:

making adjustments to the premises;

re-allocation of some duties to colleagues;

transfer of the practitioner to an existing vacancy;

altering the practitioner’s working hours, or pattern of work;

assignment to a different workplace;

allowing absence for rehabilitation, assessment or treatment;

provision of additional training or re-training;

acquiring/modifying equipment;

modifying procedures for testing or assessment; or

establishing mentoring arrangements. 14.4. NHS Resolutions Practitioner Performance Advice unit should be asked to advise on

any situation where concerns are raised about a doctor or dentist’s health. If an incident suggests a problem with a Practitioner’s health this may require investigation and, subject to the recommendation of the investigation, an immediate referral to Occupational Health.

14.5. Occupational Health should agree a course of action with the Practitioner and send

recommendations to the Executive Medical Director. A meeting should be convened with the HR Practitioner supporting the case and the Executive Medical Director or Case Manager, the Practitioner and Occupational Health to agree an action plan and rehabilitation where appropriate. The Practitioner may wish to bring a companion to the meeting.

14.6. If a Practitioner’s ill health makes them a danger to patients and they do not recognise

that, or are not prepared to co-operate with measures to protect patients, then


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exclusion from work must be considered and the professional regulatory body must be informed, whether or not the Practitioner has retired on the grounds of ill health.

14.7. Disciplinary or Capability procedures against a Practitioner for poor performance solely

due to ill health should only be considered in the most exceptional of circumstances, for example, if the Practitioner repeatedly refuses a referral to Occupational Health or NHS Resolutions Practitioner Performance Advice Unit.

14.8. In some cases retirement due to ill health may be necessary. Ill health retirement

should be approached in a reasonable and considerate manner, in line with NHS Pensions Agency Advice.

14.9. In the event that the Practitioner is unable to fulfil their contractual obligations due to ill

health and in accordance with the Attendance Management Policy a decision is required in relation to the continued employment of a Practitioner, a hearing will be convened. At least one member of the panel must have authority to dismiss. NHS Resolutions Practitioner Performance Unit advice must be sought prior to convening a hearing.

14.10. Ill-health during Disciplinary or Capability Proceedings

If a Practitioner becomes unwell while excluded or subject to capability proceedings, the

Trust’s sickness absence procedures should be followed.

14.10.1. The Trust will take reasonable steps to give a Practitioner who is unwell

time to recover and attend any hearing and will refer the Practitioner to Occupational Health as soon as possible and within four weeks, to advise on:

the expected duration of the illness;

any consequences this may have for the relevant proceedings; and

the Practitioner's capacity for future work, as a result of which the Trust and Practitioner may wish to consider retirement on health grounds.

14.10.2. Unreasonable refusal to accept a referral to, or to co-operate with,

Occupational Health, may be grounds for disciplinary action. 14.10.3. In exceptional circumstances, a Hearing proceeds in the absence of the

Practitioner, for reasons of ill-health, the Practitioner should have the opportunity to submit written submissions and/or have a representative attend in his or her absence.

15. Consultation

This Policy and procedure has been developed in partnership with representatives of the Local Negotiating Committee and the British Medical Association and apply to all medical and dental staff (“Practitioners”) employed by the Trust.

Local BMA and Local Consultative and Negotiation Committee members were involved in the development of the draft document November 2018 and at regular intervals through to March 2019

Posted on draft policy intranet site from 7th January 2019


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HR Officers during team meetings during August and September 2018, March 2019.

NHS Resolutions September 2018

Care Group Board meetings during week commencing 1st week in January 2019

HR and O D Group 22 January 2019

Medical Director, Non-Executive Director and Director of HR and OD March 2019

16. Training

The Procedure for dealing with the conduct, capability and performance of medical and dental staff does not have a mandatory training requirement but the following non mandatory training is recommended:

Managing Attendance

Investigating Officer Training

Case Managers and Investigators will receive appropriate and effective training in the operations of capability procedures. Those undertaking investigations or sitting on capability or appeals panels will have received appropriate training before undertaking such duties.

17. Monitoring Compliance and Effectiveness

Compliance with this policy will be reported to Trust Board on an annual basis through the Workforce Report. The effectiveness of this policy will be discussed by exception reporting at the Joint Consultative and Negotiating Committee.

18. Links to Other Organisation Policies/Procedures

Doctors Appraisal Policy – supporting doctors with revalidation Equality and Diversity Policy Raising a Concern (Whistleblowing Policy) Attendance Management Policy Anti-Fraud, Corruption and Bribery Policy Job Planning Policy Bullying and Harassment Policy

19. References

Medical Professional (Responsible Officer) regulations (2010) and the Medical Profession (Responsible Officers) (Amendment) Regulations 2013; SI 2013/391 http://www.legislation.gov.uk/uksi/2013/391/contents/made

Revalidation Support Team (version 2 March 2013) “Supporting Doctors to Provide Safer Healthcare – responding to concerns about a doctor’s practice” Healthcare and Associated Professionals – Doctors Medical Professional (Responsible Officer) Regulations 2010

http://www.legislation.gov.uk/uksi/2013/391/contents/made


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Department of Health (February 2005) “Maintaining high professional standards in the NHS” http://webarchive.nationalarchives.gov.uk/20130107105354/http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4103586

National Clinical Assessment Service (2011) “NCAS Handbook – resolving concerns about professional practice”.

Academy of Medical Royal Colleges “Remediation and Revalidation: report and recommendations from the Remediation Work Group of the Academy of Medical Royal Colleges”

Department of Health (2013) “Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry; Executive summary” http://www.midstaffspublicinquiry.com/sites/default/files/report/Executive%20summary.pdf

Department of Health (2005) “Maintaining High Professional Standards in the Modern NHS”. General Medical Council (GMC) (2013) “Good Medical Practice” http://www.gmc-uk.org/guidance/good_medical_practice.asp

General Medical Council (GMC) (May 2012) “Doctors with restricted registration – guidance for employers”.

The Restriction of Practice and Exclusion from Work Directions 2003,

The Directions on Disciplinary Procedures 2004

Review of the Response of Heart of England NHS Foundation Trust to Concerns about Mr Ian Paterson’s Surgical Practice; Lessons to be Learned; and Recommendations (December 2013).

20. Appendices

http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4103586

http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4103586

http://www.midstaffspublicinquiry.com/sites/default/files/report/Executive%20summary.pdf

http://www.gmc-uk.org/guidance/good_medical_practice.asp

http://www.gmc-uk.org/guidance/good_medical_practice.asp


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Appendix A

IMPACT ASSESSMENT ON DOCUMENT IMPLEMENTATION

Summary of Impact Assessment (see next page for details)

Document title

Procedure for dealing with the conduct, capability and performance of

medical and dental staff

Totals WTE Recurring

£

Non

Recurring £

Manpower Costs

0 0 0

Training Staff

0 2,000 0

Equipment & Provision of resources

0 0 0

Summary of Impact:

Risk Management Issues: this policy will ensure the Trust has follows a consistent

approach to managing the performance of medical and dental staff.

By following this procedure, doctors should feel supported through medical revalidation.

Benefits / Savings to the organisation:

It will benefit doctors, dentists through support mechanisms which will be customised to

meet individual needs.

Equality Impact Assessment

Has this been appropriately carried out? YES Are there any reported equality issues? NO

If “YES” please specify:

Use additional sheets if necessary.


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Financial and Resourcing Impact Assessment on Policy Implementation

Please include all associated costs where an impact on implementing this policy has been considered. A checklist is included for guidance but is not comprehensive so please ensure you have thought through the impact on staffing, training and equipment carefully and that ALL aspects are covered.

Manpower WTE Recurring £ Non-Recurring £

Operational running costs

0 0 0

Staff Training Impact Recurring £ Non-Recurring £

Affected areas / departments 0 0

Equipment and Provision of Resources Recurring £ * Non-Recurring £ *

Accommodation / facilities needed

Building alterations (extensions/new) 0 0

IT Hardware / software / licences 0 0

Medical equipment 0 0

Stationery / publicity 0 0

Travel costs 0 0

Utilities e.g. telephones 0 0

Process change 0 0

Rolling replacement of equipment 0 0

Equipment maintenance 0 0

Marketing – booklets/posters/handouts, etc. 0 0

0 0

Totals: 0 0

Capital implications £5,000 with life expectancy of more than one year.

Funding /costs checked & agreed by finance: 0

Signature & date of financial accountant: 0

Funding / costs have been agreed and are in place: 0

Signature of appropriate Executive or Associate Director: 0


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Appendix B

Equality Impact Assessment (EIA) Screening Tool

1. To be completed and attached to all procedural/policy documents created within individual services.

2. Does the document have, or have the potential to deliver differential outcomes or affect

in an adverse way any of the groups listed below?

If no confirm underneath in relevant section the data and/or research which provides

evidence e.g. JSNA, Workforce Profile, Quality Improvement Framework,

Commissioning Intentions, etc.

If yes please detail underneath in relevant section and provide priority rating and

determine if full EIA is required.

Gender

Positive Impact Negative

Impact Reasons

Men The procedures set out in this policy do not treat men or women differently.

Women

Race Asian or Asian

British People

Approximately 56% of our Medical and Dental Workforce

Document Title: Conduct, Capability, Ill Health and Appeals Policy and Procedure for

Medical and Dental Practitioners

Purpose of document

To put in place a policy and procedure for managers and practitioners

to follow so that no one is disadvantaged because of who they are or

because they have something in common with another group of

people.

Target Audience

Managers of Medical and Dental Practitioners,

Medical and Dental Practitioners

Human Resources

Staff Side organisations

Person or Committee undertaken

the Equality Impact Assessment Elizabeth Nials – Senior HR Manager


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Black or Black

British People

are white; the remaining practitioners have a minority ethnic background. When dealing with conduct, capability and performance issues, the ethnic origin or cultural background of the individual may need to be taken into account.

Chinese

people

People of

Mixed Race

White people

(including Irish

people)

People with

Physical

Disabilities,

Learning

Disabilities or

Mental Health

Issues

Some medical and dental practitioners may develop a disability during their employment with the Trust. Through this procedure, the Trust will ensure that any necessary adjustments (permanent or temporary) are put into place and that the employee is not disadvantaged if they have a disability or long term condition.

Sexual

Orientat

ion

Transgender

Lesbian, Gay

men and

bisexual

Age

Children

Not applicable

Older People

(60+)

Any decisions or actions taken under this policy will not be determined by the age of the employee. The requirement to maintain high professional standards set by the GMC expects doctors and dentists to keep themselves up-to-date and conduct themselves in a professional manner, irrespective of their age.

Younger

People (17 to

25 yrs.)

Not applicable

Faith Group

The Trust would expect anyone involved in discharging its responsibilities under this policy and procedure to pay due regard to the beliefs of individuals at all times

Pregnancy & Maternity

Some medical and dental practitioners may become pregnant or require taking maternity/paternity leave during their employment with the Trust.


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Through this procedure, the Trust will ensure that any necessary adjustments are put into place and that the employee is not disadvantaged.

Equal Opportunities

and/or improved

relations

Notes:

Faith groups cover a wide range of groupings, the most common of which are Buddhist,

Christian, Hindus, Jews, Muslims and Sikhs. Consider faith categories individually and

collectively when considering positive and negative impacts.

The categories used in the race section refer to those used in the 2001 Census.

Consideration should be given to the specific communities within the broad categories such

as Bangladeshi people and the needs of other communities that do not appear as separate

categories in the Census, for example, Polish.

3. Level of Impact

If you have indicated that there is a negative impact, is that impact:

YES NO

Legal (it is not discriminatory under anti-discriminatory law)

Intended

If the negative impact is possibly discriminatory and not intended and/or of high impact then

please complete a thorough assessment after completing the rest of this form.

3.1 Could you minimise or remove any negative impact that is of low significance? Explain how

below:

Not applicable

3.2 Could you improve the strategy, function or policy positive impact? Explain how below:

Not applicable

3.3 If there is no evidence that this strategy, function or policy promotes equality of opportunity or

improves relations – could it be adapted so it does? How? If not why not?

Scheduled for Full Impact Assessment Date: January 2019

Name of persons/group completing the full

assessment.

Date Initial Screening completed January 2019


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Appendix C

When a concern arises – process pathway

Concern of conduct, capability and ill health issue is identified

Stage 1

Establish the

facts

Meet with the individual to bring to their attention the concerns

Take statement

Document and set SMART objectives

Review. If no improvement move to stage 2

Stage 2

Escalating the

Concern

Discuss with Clinical Director or Lead Clinician who will in turn

contact the Medical Director to determine next course of action

Consider options, restrictions to practice, exclusion (as a last

resort)

Appoint a Case Manager – stage 3

Stage 3

Appoint a

Case Manager

(CM)

Case Manager is appointed by the Medical Director or their

Deputy

Stage 4

Identify if there

is a problem

CM to establish the seriousness of the concern and the

likelihood if formal action is likely outcome

Advice is sought from NHS Resolutions, HR Officer, and

where a trainee is involved, the Director of Medical Education

Determine next course of action: no case to answer,

remediation or formal investigation

Stage 5

Investigation

CM appoints an Investigating Officer (IO)

CM notifies practitioner giving details of allegations and

concerns and the name of IO

Investigation is conducted – refer to Investigating Officers

toolkit

Maintain contact with CM

Stage 6

Outcome

IO provides report to CM

CM considers next course of action; no case to answer,

remediation, reskilling, rehabilitation or case to answer –

disciplinary or capability hearing


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Appendix D

Decision-Making Checklist - When concern first arise

3 Exclusion is a formal process – see section 9

Who has this been discussed

with?

When?

Has the NHS PPAU been

consulted?

State name of person spoken to?

Summarise their advice

Has an NHS PPAU Assessment

been considered?

Is it an appropriate action?

If not why not?

Add details

Has supervision by Lead

Consultant been considered?

Has restricting the practitioner’s

clinical duties been considered?

If not why not?

Has restricting activities to non-

clinical duties and/or re-training

been considered?

Is it an appropriate action?

If not why not?

Is immediate exclusion

necessary?3

Outline the reasons for this e.g. a serious clinical

concern has arisen

What arrangements have been

agreed to notify the practitioner?

State the date by which letter will be sent

Name ……………………………………………..

Signed ……………………………………………

Date ……………………………………………….


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Appendix E

Decision-Making Checklist - Formal exclusion/restriction to practice

Has the case investigator

prepared a preliminary report?

What does it say? Provide summary of key conclusion

Has NHS PPAU been

consulted? If so what was their

advice?

N.B. NHS PPAU may be consulted

where a formal exclusion is being

considered.

Summarise their advice

Has a case conference been

held?

When?

Who attended

Add details

Have alternatives to formal

exclusion been considered

namely:

Supervision of clinical

role.

Cessation of certain

clinical duties

Cessation of all clinical

duties with restriction to

non-clinical duties

Insert brief analysis against each of these points giving

reasons why appropriate/inappropriate

Are any of these restrictions

appropriate?

If not why not?

Are the reasons for making

formal exclusion justifiable? If

so outline the reasons for this.

Set out basis for conclusion.

Set out reasons as per Trust policy and consistent with

national guidance.

If exclusion is necessary. How

long will it last for (maximum 4

weeks).

State length of exclusion period and date it will expire.

What arrangements have been

agreed to notify the

practitioner?

State the date by which letter will be sent

Name ……………………………………………..

Signed ……………………………………………

Date ……………………………………………….

Documents

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