The MHPS is a bloated mixture of inconsistent policy verbiage and labyrinthine procedure – here’s what we can do to replace it, says Alastair Currie

It seems a reasonable expectation that NHS trusts and foundation trusts should be able to take quick, effective action where there are serious concerns about the capability or misconduct of medical staff. Confidence in our medical staff is essential to the NHS’s success.

Surprisingly, however, any senior NHS HR professional will tell you that the section of the NHS workforce where poor capability or misconduct is least well addressed is amongst “doctors and dentists”.  There are a few cultural reasons why but the main impediment is the procedure known as Maintaining High Professional Standards in the Modern NHS, or “MHPS”.

What is MHPS and what is wrong with it?

MHPS is a calamitous mess of a document, collectively negotiated between the Department of Health and the British  Medical Association in 2003 (a bountiful year for controversial NHS workforce collective agreements). It is the “framework” procedure which all trusts are required, and foundation trusts strongly encouraged, to use for serious disciplinary or capability concerns about medical staff. It is incorporated to some extent into most medical contracts of employment.

‘MHPS, at 59 pages, is a bloated mixture of inconsistent policy verbiage and labyrinthine procedure’

To be an effective tool for busy managers, an employee relations procedure should not exceed six or seven succinct pages.  It should be clear, logical and accessible, encouraging frequent use and quick, early corrective or conclusive action.

MHPS, at 59 pages, is a bloated mixture of inconsistent policy verbiage and labyrinthine procedure. It seems designed to promote High Court debate … and so it often does. There is a devastating trail of case-law left by MHPS, each case involving a doctor or dentist and their employer becoming miserably entrenched in conflict whilst trying to navigate MHPS over the course of many years, then ultimately ending up in the courts.

Risky workarounds

No sane manager wants to touch MHPS, let alone use it frequently or to intervene early in borderline bad practice. It is well known that any attempt to use it will risk years of internal battles and litigation. Instead of using MHPS, desperate medical directors often resort to risky workarounds – trumping up tenuous “breakdown in working relationships” dismissals, or making dodgy settlement deals behind the bike sheds which unravel later with audit consequences.

It is not just employers and managers who suffer the consequences of MHPS. It is bad for doctors and dentists individually and as a profession. In individual cases, issues that could have been dealt with at a low level are left to fester until they do irrevocable damage to the employment relationship. 

Or, if a brave medical director takes up an issue, the convoluted procedure ensures polarisation of positions and, again, irrevocable damage. For the medical profession more broadly, MHPS can only cause reputational damage if a few bad eggs are not dealt with quickly and effectively, but are given grounds to publicise the concerns about them and their disputes in noisy public litigation.

‘I am sceptical about this divisive tendency to place medical professionals on a pedestal, in the context of misconduct or incapability, above others in the NHS workforce’ 

I have seen arguments that doctors and dentists require greater protection than other employees, because of the career-ending effects of unfair treatment. I am sceptical about this divisive tendency to place medical professionals on a pedestal, in the context of misconduct or incapability, above others in the NHS workforce. 

Moreover, undue complexity does nothing for fairness. It discourages quick, early, low-level resolution. So far as proportionate additional safeguards are needed, these could easily be included in a more streamlined procedure, with their application limited to cases where dismissal is contemplated.

Be more constructive… what needs to be done?

MHPS needs to be revoked and fundamentally rewritten. In my view, there is no prospect of collectively agreeing a sensible rewrite, which is not to rule out reasonable consideration of input received in consultation.The interests of staff representatives are just too conflicted to agree a streamlined policy for putting their members through disciplinary and capability proceedings.  

The Department of Health or, by delegation, NHS Improvement, should:

  • Withdraw from the 2003 collective agreement and repeal the 2005 statutory instrument that binds NHS trusts to use MHPS; and either
  • take the reins and produce a new fit for purpose recommended procedure, taking reasonable account of input through consultation; or
  • have faith in individual trusts and foundation trusts and release them to produce their own procedures locally.

We should aim for a procedure (with limited policy statements) that is short, consistent but flexible, easy to use and to interpret, promotes informal resolution and is proportionate in the resources it requires. This shouldn’t be difficult to achieve.

Alastair Currie is employment law partner at Bevan Brittan