NHS managers face strict necessity test for excluding doctors

Stuart Craig | stuart.craig@mills-reeve.com

In recent years the high court has taken an increasingly strict view of NHS managers’ powers to exclude doctors from work or place restrictions on their practice pending investigations into their conduct or capability.  This principle has been illustrated by two cases, both involving leading heart surgeons, which were heard within days of each other in the late summer.  In both cases an injunction was granted.  In the first the doctor’s exclusion from practice was overturned and in the second restrictions on practice were lifted.

 

MHPS

The framework for investigations into doctors’ misconduct or capability is provided by Maintaining High Professional Standards in the Modern NHS (MHPS).  It includes provisions on restrictions of practice and exclusions from work which NHS Trusts typically adopt locally with relatively minor modifications. 

In broad terms MHPS only permits such steps to be taken where these are “necessary” either to protect the interests of patients or other staff or where the presence of the doctor in the workplace is likely to hinder the investigation.  It adds that “it is imperative that exclusion from work is not misused or seen as the only course of action that could be taken.”

MHPS Policies are not written in precise legal terminology and at times the language used is open to interpretation. However recent cases should leave NHS mangers in no doubt about how a judge hearing an injunction application is likely to interpret the provisions on restrictions and exclusions.

 

Total exclusion

The first of the two recent cases involved a leading heart surgeon who had been working in an allegedly dysfunctional environment within a cardiac unit.  There were no concerns about her clinical abilities, although she was subject to a MHPS investigation in relation to her behaviour to other staff.  Following an internal review, an external consultant was instructed to prepare a report.  All consultants in the unit were given strict instructions not impede or seek to influence this further review.

One morning as she arrived to prepare for surgery she was told that she was being excluded from the hospital with immediate effect.  The reason given was that she had contravened the instructions not to impede the external review by approaching a potential witness, though her evidence was that this was in connection with her own MHPS investigation.

Her initial exclusion took place on 9 August and a decision to extend it was made on 23 August.  On 24 August an interim injunction was granted to overturn these decisions because the judge was not satisfied that in the prevailing circumstances her exclusion was necessary.  As he put it:

“Whilst the impact of exclusion on an individual doctor is always likely to be severe, when a skilled and respected surgeon (about whom there are no concerns as to his/her ability) is excluded the consequences reach far beyond the individual. In this case, Mrs X stands as a salutary example. As reflected in the MHPS Policy, and for sound reasons, the threshold for exclusion is necessity. Nothing less than that will do.”

 

Restriction of practice

A week later another cardiac surgeon applied to the high court for an injunction.  This time it was to challenge the failure to lift a practice restriction.

Like the previous case, the allegations concerned treatment of colleagues rather than any clinical failings.  He was initially excluded, but following written representations made under the Trust’s MHPS Policy, this was changed to a restriction on his practice which enabled him to work for two days a week from an alternative site.  The following day the case investigator’s report was published.  In the view of the trial judge it effectively dismissed a number of the more serious allegations against the doctor, and watered down the others.  However the continuation of the restriction on practice was justified by the Trust on the basis of new information which came to light in the course of a separate investigation into another doctor which it wanted the case investigator to consider.

In granting an order lifting the remaining practice restrictions, the judge said that in these circumstances what was required was a “very careful consideration” by the Trust’s medical director of whether they “really remained necessary” in the light of the investigator’s report.  He was strongly of the view that any ongoing concerns in relation to the investigation could be sufficiently addressed through “consent and agreement”, particularly given that it was “almost inevitable” that the doctor would return to practice after his disciplinary investigation.

 

Practical implications

Deciding whether or not to exclude a doctor or impose practice restrictions involves a very difficult balancing exercise between the interests of the doctor and the wider interests of the Trust in protecting the safety of patients and the welfare of its staff. Courts will be reluctant to interfere if NHS managers can show that they have gone through that exercise, considered all the alternatives, and come to the conclusion that any exclusion or other restriction is strictly necessary in the context of the framework established by MHPS.

In the first of the cases we have considered, it seems likely that the Trust may have acted too hastily, and in the second failed to adjust sufficiently quickly to new circumstances. However in both cases it is worth remembering that the injunctions were only given on an interim basis, based on the circumstances that prevailed at the time of the hearing and without hearing the evidence in full.  That means that these decisions cannot be regarded as setting out hard and fast guidelines.  However, they provide useful insights into how our judges are likely to interpret the relevant provisions of a Trust’s MHPS policy.