The management of clinical performance and the response to the misconduct of healthcare professionals is attracting more public and political interest than ever before. Wellpublicised cases in Bristol and Kent have revealed shortcomings in the response of hospital managers and fellow clinicians where there has been evidence of poor performance. These have fuelled concern that current arrangements for tackling poor performance are ineffective and need changing.
The government's response, as outlined in the NHS plan, is to implement the chief medical officer's performance management blueprint, Supporting Doctors, Protecting Patients. Here we consider one aspect of the new proposals - the disciplinary process for doctors.
One aim of the new proposals is to move away from 'daunting and legalistic' procedures. Current disciplinary procedures are complex, time-consuming and expensive and can result in doctors being suspended on full pay for two years or more. This is detrimental for both parties. Doctors are left with serious allegations of misconduct or incompetence hanging over them, and the trust has to justify the delay in resolution to other parties.
In a number of cases, health service bodies have been forced to abandon disciplinary cases on procedural grounds, even though real concerns about a doctor's performance remain.
Currently, most NHS doctors are contractually entitled to benefit from the provisions of circular HC(90)9. The only exception is where a trust has incorporated a locally agreed procedure into employment contracts that differs from these provisions.
Under these provisions, different procedures apply depending on the seriousness of the case. Where there has been poor professional performance or conduct, but dismissal is not being considered, a professional review will be set up, with two independent assessors. An assessment should be completed within three months.
In more serious cases, which might warrant a dismissal, an independent inquiry panel may be set up. This comprises a legally qualified chair, an independent clinician ideally from the same specialty as the doctor under investigation and a lay member. Again, the inquiry should be completed within three months.
The inquiry is conducted in a formal manner and involves the examination and cross-examination of witnesses, usually by lawyers acting for the employing trust and the doctor. On completion, the panel prepares a summary of the material facts and a set of recommendations for the trust. Any decision on disciplinary action rests with the trust and not the panel.
The new proposals aim to replace these procedures with a single approach to performance problems, with the doctor referred to a dedicated assessment and support centre run jointly by the NHS and the medical profession.
One advantage of this is that the employing trust will not be required to make an initial judgment on the likely severity of the disciplinary sanction, or base its choice of procedure upon this judgement. The centre will provide a rapid diagnosis of the problem based on a review of records, documentation, clinical audits and interviews with the doctor concerned and other staff. A full written assessment will be provided to the employing trust and the doctor.
However, this new structure will not detract from the employer's responsibility to decide what, if any, disciplinary sanction to impose.
Trusts will still have to convene hearings at which the findings of an assessment centre can be discussed with the doctor, and any mitigating circumstances can be presented. It is likely that doctors will wish to retain the right to legal representation in these hearings.
Under existing arrangements, a trust has to determine at an early stage whether the problem being addressed should be categorised as personal conduct, professional conduct or professional competence.
This is a procedural minefield.
The classification is significant, as it will often determine the disciplinary procedure, and the extent to which the doctor will benefit from procedural safeguards unavailable to other staff under the trust's normal disciplinary procedures.
The courts have stated that a trust's classification decision will only be overturned in limited circumstances.
1However, some disciplinary cases have floundered at the categorisation stage (see box 1).
It was hoped that any new disciplinary mechanism would remove uncertainty over classification. But under the new proposals, trusts will still be required to distinguish between personal misconduct and concerns about clinical performance, leaving the door open for legal challenges.
It is a basic principle of employment law that before an employer takes disciplinary action for misconduct, especially if that action is dismissal, there should be a thorough investigation.
2Incases involving doctors, there is often a need to establish whether the alleged misconduct was a one-off, or whether it indicates a more widespread problem.
This can involve employing trusts in lengthy audits of a doctor's cases. The responsibility for carrying out such investigations often falls on the trust's medical director.
As there are often no additional resources available to assist with the investigation, this can be a burden when placed alongside his or her other responsibilities.
The proposed Assessment and Support Centres should reduce the burden on medical directors and their teams. But the details of how the centres will operate have yet to be determined. It is clear that if they are to conduct sufficiently thorough investigations, extensive resources will be required.
Under paragraph 190 of Whitley Council terms and conditions, career-grade doctors in hospitals and the community have a right of appeal to the secretary of state for health against a decision to dismiss them for professional misconduct or incompetence.
If they exercise this right, their employing trusts are required to continue to employ them on full pay until the determination of their appeal by the secretary of state.
In many cases, the trust will also be paying for a locum to undertake the doctor's duties during this period.
The procedural timetable means most appeals will not be determined for at least 12 months after the trust has decided to dismiss the doctor.
The new proposals have reiterated that this right of appeal is currently only available to staff whose employment contracts entitled them to paragraph 190 rights before their transfer to trust employment, and who have not signed new contracts subsequent to that transfer.
However, a number of trusts have incorporated a right of appeal in their local contracts.
If a doctor seeks to exercise this right, and the secretary of state refuses to consider the appeal, a breach of contract claim can be brought against the employing trust.
The new proposals suggest replacing paragraph 190's rights of appeal with an internal appeal mechanism at local level. This proposal forms part of the negotiations with the British Medical Association over a new consultant contract. But paragraph 190 provides valuable safeguards for doctors who are dismissed, and so it is unlikely to be abandoned lightly. As well as the prospect of receiving full pay for a year or more while an appeal is determined, doctors also benefit from having their appeals heard by a panel that includes representatives of the chief medical officer and the joint consultants committee. It is assumed that in any negotiations over local-level appeal mechanisms, the BMA will press for similar safeguards to be included.
The new proposals seek to simplify the disciplinary framework for doctors. But although they go some way towards this, they fail to address the full problem, especially the issue of categorisation, on which disciplinary cases can easily flounder.
Most doctors have a contractual entitlement to the procedures in HC(90)9, which in some cases are supplemented by the right to appeal. These entitlements can only be varied by agreement.
While the new arrangements could be implemented on a voluntary basis with individual doctors, it will be necessary for the profession to agree to the removal of HC(90)9 protection as part of the negotiations over new contracts for the proposals to be instigated. However, it is doubtful whether the new proposals will be accepted in their current form by the medical profession.
1 Kramer -v- South Bedfordshire Community Healthcare Trust (1995) 30 BMLR; Chatterjee -v- City & Hackney Community Services NHS Trust (1999) 49 BMLR.
2 British Home Stores -v- Burchell  IRLR 379.