Pallavi Bradshaw: Are disciplinary procedures in NHS trusts aiding a culture of fear in healthcare?

pallavi_bradshawOngoing debate around the high profile Bawa-Garba case has thrown the concept of an open, learning culture in healthcare into question.To regain confidence, the law that is applied in gross negligence manslaughter cases involving doctors must be reformed, and action is needed to protect written reflections with the sole purpose of education and training. But there are other processes, such as disciplinary procedures, that reinforce mistrust and fear across the profession and need addressing, argues Dr Pallavi Bradshaw from the Medical Protection Society (MPS).

Doctors face considerable pressures throughout their career. But one of the most professionally challenging things a doctor can experience is having disciplinary proceedings brought against them by their employer.

MPS experts who have supported NHS hospital doctors going through disciplinaries have witnessed firsthand the career changing consequences these procedures wreak on a doctor. A study of almost 8000 doctors by Imperial College London showed that 16% of doctors going through a local formal investigation experience moderate to severe depression and 13.5% experience anxiety.

If disciplinary procedures are unfair and do not follow due process, the impact on the individual is even greater, but it goes beyond that, also affecting the culture of the organisation, and reinforcing a culture of fear across the wider healthcare profession.

The Maintaining High Professional Standards framework—which sets out the steps NHS trusts in England should take when concerns are raised about the clinical practice of a doctor—has been in existence for well over a decade, yet it still remains poorly applied by many trusts. A fundamental issue is its incorporation into individual trust frameworks and its implementation, which has led to some concerning inconsistencies and misinterpretation.

MPS’s Getting it Right report takes a close look at this. It found examples of procedures that were unnecessarily prolonged; cases where trusts do not provide the doctor with sufficient information about the allegations; and cases where trusts impose draconian measures that prevent doctors from accessing education and contacting colleagues, leaving them isolated and de-skilled. Our report also raised concerns about the use of exclusions and restrictions, rather than more proportionate options, which—although they may be logistically difficult to facilitate—should be considered first.

There are, of course, examples of effective and fair disciplinary procedures in NHS trusts, but it is not hard to see how the unfair practices that do occur could have a detrimental impact on trust and openness. There is also no robust mechanism for learning or sharing good and poor practices across the system.

NHS employers, the National Clinical Assessment Service (NCAS), the GMC, the government, and medical defence organisations all have a part to play in getting disciplinaries right. And there are some core principles that could sensibly underpin a good process.

Firstly, timeliness is crucial. Patients are best served when a doctor is in the consultation room, on the ward, or in theatre. Where a doctor is excluded from their duties while subject to a disciplinary investigation, it is in everyone’s interest for the matter to be settled swiftly. Delays should be kept to a minimum to avoid doctors becoming demotivated, de-skilled, and resigning—regardless of the investigation outcome. Yet too often, we found that proceedings are marked by repeated delays.

Secondly, the steps taken should be proportional. Disciplinary action should only be pursued in the most serious cases when other approaches have been exhausted. Decisions to then exclude or restrict a doctor’s practice should also only be made after careful consideration about the nature of the allegation, an open and full discussion with NCAS, and the rationale for the decision must be shared with the doctor and their representatives. It is not acceptable to keep mandating an extension of the exclusion and not consider alternatives. Constructive dialogue with the doctor and their representatives early on in the process can prevent unnecessary exclusions and protracted processes.

Thirdly, to have credibility, proceedings should be conducted with fairness. A doctor’s right to a fair hearing during disciplinary proceedings is deeply enshrined in law, but fairness and equal treatment isn’t always present. There should be transparency for all parties, with all necessary disclosures made.

Finally, there simply must be accountability. Where a trust is found to be lacking in the way they handle these cases, a clear and efficient method needs to be established to hold them to account. Medical directors should be conscious of their obligations under Good Medical Practice, and the GMC should be willing to hold them to account in the same way as they would any other registrant.

Doctors need to have confidence in senior management and its commitment to due process. Without this, it’s hard to see how we can improve openness, learning, and transparency in the NHS.

We do not claim to have all the answers to how shortcomings in doctors’ disciplinary proceedings can be improved. However, in the current climate where an open culture is in jeopardy, it is surely time for a serious debate about how we can all work together to achieve best practice and consistency.

Dr Pallavi Bradshaw is senior medicolegal adviser at the Medical Protection Society (MPS). This article was not commissioned.

Competing interests: Membership with MPS provides the right to request access to expert advice and support on clinical negligence claims, complaints, GMC investigations, disciplinaries, inquests, and criminal charges such as gross negligence manslaughter. Members also have the right to request indemnity for claims arising from professional practice.