Maintaining high professional standards (MHPS) in the modern NHS

A framework for the initial handling of concerns about doctors and dentists in the NHS

3 June 2011

What is MHPS?

Maintaining High Professional Standards was published by the Department of Health in December 2003 as a framework for handling concerns about doctors and dentists in the NHS. The document was drafted in collaboration with NHS employers and the National Clinical Assessment Service. The procedures set out in MHPS replaced the disciplinary procedures set out in HC(90)9 and required all employers to implement the framework within their local procedures by 1 June 2005. All NHS employers must have procedures for handling serious concerns about conduct or capability and local procedures generally mirror the requirements of MHPS.

Has MHPS been incorporated into my contract?

When MHPS was implemented most practitioners will have received a letter from their employers notifying them of the incorporation of MHPS into their contracts in replacement of pre-existing disciplinary policies and procedures. Such letters ordinarily asked for a signature to confirm the amendment of the contract. In some cases practitioners were simply notified of the intended amendment and incorporation of the new procedure. If your employer indicates that an MHPS investigation is to be undertaken it is advisable to ask for confirmation of how it is said that MHPS is incorporated into your contract.

How can I get a copy?

The document is available on the Department of Health website. In addition, if your employer has indicated that an investigation is to be undertaken, it is suggested that you ask your employer for a copy of its current disciplinary/capability policy.

Investigations

My employer states it is undertaking an investigation in accordance with MHPS, what should I be told?

• The name of the case manager – this is the person who is responsible for deciding the course of the investigation once case conferences have taken place and when the case investigator has reported.
• The name of the case investigator – this is the person who is responsible for leading the investigation into any alleged concerns. The investigator will establish the facts and report his/her findings to the case manager. The case investigator does not make the decision on what action should be taken.
• The specific allegations or concerns.
• You must be given an opportunity to see all correspondence relating to the case.
• A list of the people who are to be interviewed.
• Details of advice given by NCAS (The National Clinical Assessment Service).

What will happen at the end of the investigation?

Once an investigation has been completed you should be given an opportunity to comment upon the report before the case manager decides how to proceed. The position is not clearly stated in MHPS regarding cases of alleged misconduct although your employer’s own disciplinary and conduct policy is likely make provision for the disclosure of the report.

The case manager (who is responsible for managing the investigation and who makes decisions on how matters should proceed once the case investigator has reported his/her findings) will decide, based on the report, whether:

• there is a case of misconduct that should be put to a panel.
• there are concerns about health that should be referred to Occupational Health.
• there are concerns about capability that should be explored by NCAS.
• there is a need to restrict your practice or exclude you from work whilst the investigation is carried out or, if you are not excluded during the investigation, whether there is a need to exclude you pending the final consideration of the case by a panel.
• there are serious concerns that should be referred to the GMC or GDC.
• there are intractable problems and the matter should be put to a capability panel.
• no further action is needed.

Alternatively, the case manager may decide that a Royal College investigation would be appropriate before a final decision is taken to invoke formal disciplinary procedures.

Exclusion

When a concern is raised about a practitioner and a Trust considers that there is a need to protect the interests of patients or staff and/or believe that practitioner’s presence in the workplace may prejudice or impede an investigation a practitioner can be excluded. This is an interim measure and should be used only in exceptional circumstances. An initial exclusion can be immediate, and limited to a maximum of two weeks to allow a preliminary investigation to be undertaken.

A formal exclusion can be imposed once it has been determined that there is a case to be answered and where there is a reasonable and proper cause to exclude.

Formal exclusions must be reviewed before the end of each four week period.

Know your rights and obligations

Where exclusion is proposed you have the right to:

• be represented at any meeting. Ordinarily this will be by a colleague or representative from your Defence Organisation. Legal representation is not normally permitted at exclusion meetings.
• know the details of the allegations or areas of concern.
• know the details of advice given by NCAS.
• know the reasons why formal exclusion is considered to be the only way to deal with the case.
• be given an opportunity to state your case and propose alternatives. If alternatives are imposed in place of an exclusion, such as conditions, you should ensure that you comply with them in full.

During a period of exclusion you will usually be paid in full. You should remain available for work during your normal contracted hours. You should seek consent to take annual or study leave. You should supply details of other employers (or private practice) so that your employer can notify them of the exclusion. Your exclusion should be reviewed very four weeks and should be limited to a maximum period of six months.

Could there be an impact on my private practice?

Although admission rights at private hospitals are a separate matter to NHS employment, private hospitals ought to be notified of the fact of an exclusion and MHPS investigation in order that they can determine whether they are content to allow you to continue to work in a private capacity whilst an MHPS investigation is undertaken.

Your employer has a duty to notify other organisations, including any private hospitals or clinics where you work, of any restrictions or exclusions that have been imposed and you should therefore supply your NHS employers with details of other employers (or private practice arrangements) so that your employer can notify the appropriate bodies of the exclusion or restrictions.

Conduct

Your employer should have their own procedure for dealing with allegations of misconduct. You should ask to see this. If an investigation relates to allegations of misconduct, the case investigator should take independent professional advice and any panel considering the case should include a medically/dentally qualified member who is not currently employed by your Trust. They should discuss the appointment of this member with an appropriate body such as the Local Medical Committee or a local negotiating committee.

The way in which a conduct hearing is handled will depend on your employer’s own procedure.

Capability/performance

Before any decision is made to refer a capability case to a hearing, NCAS must be involved and consideration must be given to undertaking an NCAS assessment and drawing up an action plan to remedy any perceived performance deficiencies. If it is felt that an action plan or remediation is not possible, or if an action plan fails to remedy the perceived deficiencies, the case will be referred to a panel for consideration.

Health

Your employer may raise concerns that your health is affecting your clinical performance. If such a concern arises, they ought to consider whether any ‘reasonable adjustments’ can be made to allow you to continue to practise. Your employer should consult with its Occupational Health Department and NCAS to decide on an appropriate way forward.

A health case should only be referred to a hearing in exceptional circumstances such as where it is considered that the practitioner is refusing to cooperate in the process (such as by refusing to be referred to Occupational Health or NCAS) or if it is felt that no reasonable adjustments can be put in place. If a health case is referred to a hearing, the same procedure applies as in capability cases.

Can I be dismissed on health grounds?

The purpose of the health procedures is to ensure treatment, retraining and rehabilitation. If a practitioner is considered to be unable to recognise that their ill health makes them a danger to patients or themselves and if they are unwilling to co-operate with their employer, separate conduct proceedings could be pursued. Such separate proceedings raise the potential for dismissal to be considered.

Hearings

What will happen before a hearing?

If it is decided to hold a hearing, the following procedure should be followed in capability and health cases. Your employer’s own disciplinary procedure will provide details of the process to be followed in conduct cases.

• You should receive at least 20 days notice of the hearing which should include details of the allegations, copies of any documents that are to be given to the panel and details of how the case will proceed.
• Any documentation, to be relied on by you and your employer, including witness statements must be exchanged at least 10 days before the hearing.
• Witnesses who have given statements ought to be asked to attend the hearing.

Am I entitled to legal representation?

Although MHPS does not specifically provide for a right to representation it is generally accepted that at conduct and capability hearings, where the potential outcome of the hearing could significantly affect your employment (ie could result in dismissal) legal representation will be permitted. A recent case in the Court of Appeal confirmed this position. A recent court decision permits hospital doctors to be represented by a lawyer instructed by a Defence Organisation.

What will happen at the hearing?

At the hearing itself, the case manager will present the Trust’s case and will call any witnesses on whose evidence the Trust intends to rely. You or your representative will also be given an opportunity to put questions to any witnesses called by the Trust. You or your representative will then present your case. You and your witnesses can give evidence and the Trust and panel can ask you questions. The Trust and then you or your representative will be able to make a closing statement before the panel considers their decision.

What decisions can the Panel make?

• Determine that no further action is required.
• Request an oral agreement that there must be an improvement in performance based on an action plan (this will stay on your record for six months).
• Issue a written warning that there must be an improvement in performance based on an action plan (this will stay on your record for one year).
• Issue a final written warning that there must be an improvement in performance based on an action plan (this will stay on your record for one year).
• Issue a disciplinary sanction in accordance with their own conduct procedures (verbal warning, written warning, final written warning or dismissal).
• Determine that reasonable adjustments ought to be made to cater for any concerns about your health.
• Determine that your employment should be terminated.

The position differs slightly in relation to exclusion hearings given that they are only an interim measure. At an exclusion hearing, the decision makers do not reach findings of fact and do not hear live evidence. Confirmation ought to be sought from your employer about whether they will permit you to be legally represented if an exclusion is to be considered.

What will happen after the hearing?

The panel’s decision must be given to you as soon as possible, and usually within five working days of the hearing. The decision must be confirmed in writing and you are entitled to receive reasons for the decision, details of your right to appeal and notification of any intention to refer your case to the GMC, GDC or other external professional body.

Doctors in training/students

Students

Universities should have their own procedures for dealing with conduct and capability cases for doctors in training. Your medical school should ensure that your Deanery is contacted when a concern arises and should keep your Deanery involved in discussions concerning the management of your case.

As a general rule, doctors in training should not be excluded from practice when a concern arises.

Training grades

Concerns about conduct and capability relating to a doctor or dentist in recognised training grades should be considered initially as a training issue and dealt with via the educational supervisor and college or clinical tutor, with close involvement of the Postgraduate Dean.

Text reproduced with the kind permission of Berrymans Lace Mawer Solicitors