Last month’s high court decision should help streamline capability procedures for Trusts operating the MHPS framework.
The high court has dismissed a claim brought by a suspended doctor seeking to prevent a NHS trust from proceeding with a capability hearing. The judge has rejected an argument that the Trust could not proceed until it had received a decision from the National Clinical Advisory Service (NCAS) that there was no realistic chance of a successful remedial action plan.
The Trust was represented by Mills & Reeve. NCAS was also party to the proceedings and separately represented.
The role of NCAS clarified
The legal dispute focused on two paragraphs in Part IV of Maintaining High Professional Standards (MHPS), which sets out the procedure to be followed by NHS employers when dealing with clinical capability. It was fairly clear that these paragraphs had contractual effect, but less clear how they were to be interpreted.
The claimant relied on a passage that deals with a scenario where “a case has been considered by NCAS, but the advice of its assessment panel is that the practitioner’s performance is so fundamentally flawed that no educational and/or organisational action plan has a realistic chance of success.” In these circumstances, the passage continues, the case manager must make a decision about whether the case should be determined under the Trust’s capability procedure. Based on a high court ruling three years ago in Lim v Royal Wolverhampton NHS Trust, the claimant argued that this meant that once a referral had been made, a Trust could not proceed to a capability hearing in any other circumstances.
The problem for NHS employers with this interpretation was that in some cases there will be difficulties in agreeing a workable action plan, but NCAS may, for understandable reasons, be reluctant to say that no plan could ever work. In this case, unlike in Lim, NCAS was added as a party to the proceedings, which enabled the judge to hear evidence from one of its lead advisers. His evidence stressed the advisory nature of NCAS’ role. He said that in his experience it was “highly unlikely that any assessor would be comfortable saying that a practitioner’s performance was so flawed that remediation is impossible.”
The high court ruled that the passage relied on by the claimant was just one example of circumstances in which a capability hearing could be considered. It did not mean that a trust was precluded from convening a capability hearing in other circumstances, subject to its overriding duties as an employer not to act “irrationally, unreasonably and capriciously”. For example it should not reject an action plan proposed by the practitioner or NCAS simply in order to proceed to a capability hearing.
Relationship with GMC proceedings
It was also claimed that the Trust could not proceed to a capability hearing before the conclusion of the General Medical Council (GMC) proceedings. The claimant argued that that Trust should have waited for the final outcome of these proceedings, or at least for the decision of the Medical Practitioners’ Tribunal Service into his fitness to practise.
The judge pointed out that while MHPS states when a practitioner must be referred to the GMC, it makes no provision for internal proceedings to be delayed pending the outcome of such a referral. She said that had this been the intention, it would have been dealt with expressly.
Subject always to its duty not to act irrationally, it was therefore up to the Trust to decide how long, if at all, it was appropriate to wait once the threshold for referring the matter to a capability hearing had been met.
Subject to any appeal by the claimant, this case means that a capability hearing under MHPS (with its inbuilt safeguards for the clinician) remains the appropriate forum for deciding disputed questions about the prospects of remediation. As the judge pointed out, the alternative interpretation of requiring NCAS to make a decision on remediation in every case would have the effect of “elevating NCAS from advisor to adjudicator in relation to a practitioner’s future employment.”
The case also offers some helpful comments on the inter-relationship between a trust’s capability procedures and investigations by the GMC.