The MHPS framework is incorporated into the employment contract of medical and dental practitioners working mainly in secondary care. It offers a framework for how investigations into serious concerns raised about a doctor or dentist should be carried out.
NHS Resolution have confirmed 1751 secondary care practitioners were investigated in the financial years from 2017-2021 under MHPS. They also confirmed the average length of exclusion from practice during this period was 161 days in cases where exclusions had ended, not taking into account those cases where practitioners remained excluded from practice.
The idea behind the implementation of MHPS in 2005 was to ensure serious concerns raised about capability/ performance, conduct or health are fairly investigated (whilst maintaining patient safety) as the consequence of any employment investigation could be career ending for the practitioner in question.
But has fairness been achieved?
Where concerns are identified a case manager, most likely the medical director, first considers whether any concerns need formally investigating. If the case manager decides a formal investigation is required, they can appoint a case investigator who is given the terms of reference for their investigation. Depending upon the case investigator’s report the case manager will decide whether formal disciplinary procedures should be started and whether any restrictions to practice, or even exclusion from practice, should apply pending the outcome of any final disciplinary hearing.
The case investigator is tasked with considering whether separate clinical advice should be obtained if they do not have the relevant qualifications themselves, ensure all appropriate witnesses are interviewed and relevant evidence is gathered and documented. They should also meet with the practitioner involved to understand their case. At the end of their investigation they should provide a report to the case manager. Note: this report only needs to be shared with the practitioner if the issues relate to capability/ performance as it is considered the practitioner might otherwise interfere with the evidence gathered.
The case investigator is given wide discretion about how they can carry out their investigation. If they come across other issues, they are to report back to the case manager advising whether any additional issues should be included in the investigation. This can cause investigations to change from the original terms of reference causing investigations to rumble on for years resulting in significant additional pressures on the practitioner and also the tax payer.
Case investigators are advised to ascertain the facts in an unbiased way. They are advised not to search for evidence to support complaints or overlook information which might support the practitioner. But does the case investigator always comply with their duties to act fairly?
Guidance from NHS recommends case investigators should receive training for two days with four three-hour sessions. Given the potential seriousness of any investigation, a two-day training course hardly seems sufficient to ensure a case investigator understands issues around procedural fairness and impartiality.
Consider the case of Kamath v Blackpool Teaching Hospitals, an investigation into a consultant orthopaedic surgeon. The terms of reference had considerably changed, the doctor was excluded from work for a prolonged period of time and the case investigator appointed was a retired physiotherapist all adding to the confusion about the scope of the investigation and the findings and conclusions in the case investigator’s report.
Consider also the case of Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust, an investigation into a consultant general surgeon. There were a number of failings in his MHPS investigation and he was awarded damages for unfair dismissal, race discrimination and victimisation.
A perusal of the MHPS investigation and meeting notes pertaining to another case I have seen highlights the flaws of a poor case investigation. An experienced case investigator, known to the doctor, held unusually lengthy meetings with the doctor. He framed questions starting with “You must have known….you must have been familiar…. I just find it inconsistent and incredible that this would have been a mistake…I am giving you the chance to come clean…”. It was apparent this case investigator had already pre-judged the investigation, far from ascertaining the facts in an unbiased manner. The case investigator had little knowledge of the doctor’s clinical area of practice and asked the doctor to give lengthy explanations about their clinical work. The doctor described their experience as an interrogation, not an investigation.
Not all doctors or dentists have the right advice or assistance available through the process, giving the employer greater influence over a vague and complex process that is in much need of an overhaul. If faced with an MHPS investigation, a practitioner can ask their employer to appoint two case investigators to minimise the risk of bias, especially when one lacks clinical knowledge about their area of practice. However, we consider NHS organisations should go further and agree with the practitioner independent case investigators agreeable to both parties. After all, Maintaining High Professional Standards should stand for a fair process.
