DISCIPLINARIES

Published: 24/03/2005, Volume II5, No. 5947 Page 36

Cumbersome, costly and ineffective are some of the words used to describe HC(90)9, the procedure for dealing with professionals' concerns about doctors and dentists. From 1 June, it will be replaced by guidance entitled Maintaining High Professional Standards in the Modern NHS .

It is leaner, faster and less costly than HC(90)9. On average, it costs an NHS body about£200,000 to take a practitioner through the existing process.

The guidance will bring that sum down substantially. Below we detail the changes.

Misconduct allegations Under the guidance, misconduct allegations are dealt with under the employer's own disciplinary procedure.

Misconduct will generally fall into a small number of categories such as refusing to comply with reasonable requirements of the employer and breaching the employer's disciplinary rules.

That means bullying a patient is misconduct - not the case with the current regime. So is this the end of all the disputes about what is 'personal' and 'professional' misconduct? Not quite.

Practitioners still have the ability to challenge such categorisation by raising a grievance. If the practitioner is still unhappy, we think they could still bring legal action to challenge a categorisation, but this will be harder to do than it is now.

The guidance also gives advice on agreeing settlements on termination of employment. This includes:

settlements must not jeopardise patient safety;

payment should not normally be made in which a practitioner is dismissed for misconduct or resigns.

Capability allegations

This is where the improvements emerge.

The quasi-legal process under HC(90)9 is replaced by an internal procedure more in keeping with management of capability concerns. Capability is clearly defined.

Those involved in such procedures must be appropriately trained. The procedure requires:

a pre-hearing process where the practitioner has 10 working days in which to comment on the factual content of the case investigator's report;

20 working days' notice of a capability hearing;

exchange of documentation, including witness statements, 10 days before the hearing;

a panel chaired by an executive director, normally one other board member and a practitioner from another NHS employer. The panel should also have advice from a senior human resources professional and a senior clinician from the same or similar specialty as the practitioner, but from a separate organisation;

the practitioner may be represented by a friend, partner or spouse, colleague or trade union or defence organisation representative. The representative may be legally qualified, but will not represent in a formal legal capacity;

there is a suggested format for the hearing;

there is a right of appeal against the panel's decision. The appeal is generally to ensure there was a fair hearing and reasonable decision reached by the panel.

The appeal panel shall be made up of an independent chair from an approved pool, the employer's chair (or other nonexecutive) trained to hear such appeals and a medically qualified member.

Paragraph 190 rights, which allowed certain long-serving consultants to appeal to the health secretary, are abolished.

The role of the National Clinical Assessment Authority The NCAA is at the heart of all these procedures. The guidance requires NHS employers to take the NCAA's advice at all key stages in any of these processes.

NHS employers will need to have clear and cogent reasons for departing from the advice, though they can do so.

Next steps for employers

There is much work for NHS employers to do before 1 June:

drafting revised capability and health procedures for practitioners;

reviewing the disciplinary procedure to ensure it is consistent with the guidance;

identifying individuals to act as case managers, case investigators, designated members and capability panel members and then ensuring they are appropriately trained for their roles.

Nick Chronias is a partner at law firm Beachcroft Wansbroughs.