NHS Forth Valley Department of Human Resources Guidance for Managing Issues Regarding the Conduct and Competence of Consultant and Other Career Grade Doctors and Dentists Warning - Document uncontrolled when printed Policy Reference: Date of Issue: 22nd August 2012 Prepared by: As Page 2 Date of Review: 21st July 2012 Lead Reviewer (Policy Owner): Version: 1 Authorised by: Forth Valley NHS Board and Local Negotiating Committee Date: 22nd August 2012 Distribution All Consultants, General Managers, Service Managers Method CD Rom E-mail √ Paper Intranet √ AGREEMENT BETWEEN FORTH VALLEY NHS BOARD AND THE LOCAL NEGOTIATING COMMITTEE This Guidance has been negotiated by Forth Valley NHS Board and the Local Negotiating Committee (LNC): Signed on behalf of NHS Forth Valley Iain Wallace, Medical Director Date: Signed on behalf of NHS Forth Valley LNC Brian Kennedy, Staff Side Chair of LNC Date: Signed on behalf of NHS Forth Valley HR Department : Helen Kelly, HR Director Date: 1. Background This guidance paper has been produced to help to define the roles and responsibilities of key stakeholders when the conduct, performance, capability or health of a career grade doctor / dentist is called into question. i) Change in Culture Over the last few years a number of initiatives have been put in place which aim to create a culture of accountability for doctors with emphasis on the delivery of a quality service to patients. Central to this is the issue of how to deal with poorly performing doctors / dentists, the overarching principle being that prevention is better than cure. ii) Contractual and Legal Framework All Doctors / Dentists employed by the Board: o o o o have a contract of employment with the Board; are covered by the Disciplinary Process outlined in NHS Circular 1990 (PCS) 8, 1990 (PCS) 32, PCS (DD) 1994/11, PCS (DD) 1997/7, PCS (DD) 2001/9 and local process are subject to Board Policies and Procedures governing all aspects of their employment; are covered by the provisions of the Equality Act 2010, as well as Data Protection provisions. In addition, all Doctors/Dentists are subject to statutory regulation by the General Medical Council (GMC) and / or the General Dental Council (GDC) as appropriate. iii) Supporting Career Grade Doctors/Dentists Structures are in place to ensure that all career grade doctors are appraised annually. The process is outlined in “Policy for Appraisal and Revalidation of Doctors in Primary and Secondary Care”. The Board should ensure that structures are in place to deliver the following for all career grade doctors/dentists: quality induction clearly defined supervisory arrangements where appropriate for non-Consultant career grade doctors/dentists an annual job plan review annual appraisal the availability of a mentor if requested pastoral support for doctors/dentists in difficulty By ensuring that the above structures are in place, competence and performance issues will be identified at an early stage. Many may be adequately dealt with in the first instance on an informal basis, locally by the Clinical Lead. Options available, which are not exhaustive, are included in Appendix 2. Salaried and Community Dental Practitioners are not covered by the “Policy for Appraisal and Revalidation of Doctors in Primary and Secondary Care”. Separate arrangements for Dentists apply. 2. Dealing With Clinical Performance Issues i) Introduction In every profession, it is recognised that on occasion, employees may encounter difficulties during their career. These may manifest themselves in many ways, in terms of conduct, competency, poor performance or ill health. Within the medical and dental professions, it is recognised that the cost of training clinicians is high. Retention of doctors/dentists within the system is therefore cost effective to the service but cannot be at the expense of patient safety, which is of paramount importance. The management of performance is a continuous process which will identify problems at an early stage. Numerous ways now exist in which concerns about a practitioner’s performance can be identified, facilitating remedial and supportive action before problems become serious or patients are harmed. Where appropriate, such early intervention may avoid the need to resort to the use of formal investigation or use of the formal disciplinary process. Concerns about a doctor’s/dentist’s conduct or capability can come to light in a wide variety of ways, including for example: concerns expressed by other clinicians, NHS professionals, health care managers, students and non-clinical staff review of performance against job plans, annual appraisal and revalidation monitoring of data on performance and quality of care clinical governance, clinical audit and other quality improvement activities, including the patient safety initiative complaints about care by patients, carers or relatives of patients litigation following allegations of negligence information from the police or Procurator Fiscal court judgements Complaints made by patients, relatives or carers, or concerns raised by colleagues, must be properly investigated to establish and verify the facts. Unfounded and/or malicious allegations can cause lasting damage to a doctor’s/dentist’s reputation and career prospects. A serious concern about capability will arise where the practitioner’s actions may adversely affect patient care or have already done so. ii) Procedures When information is received or an allegation made of sufficient concern to require potential action and which cannot be dealt with informally by the Clinical Lead, it should be referred to the appropriate Associate Medical Director (AMD), who will instigate a preliminary enquiry to determine the appropriate course of action. The AMD will inform the relevant General Manager that this course of action has been initiated. The appropriate Human Resources Manager will also be informed and will support the processes set out below. iii) Preliminary Enquiry (PE) The preliminary enquiry is not a formal investigation; while it may inform the direction and scope of any subsequent formal process, its substance should not be used as part a formal investigation to avoid the risk of prejudicing the outcome. The AMD may choose to conduct the PE or delegate it to the Clinical Lead responsible for the doctor/dentist in question. The aim of the PE is to provide sufficient preliminary information to the AMD to enable him/her to decide which of the range of options for dealing with a potential problem will be pursued. It is important, since the PE is not a formal investigation, that its scope is limited to gathering the information necessary to enable the AMD to make a decision on the future progress of the matter. This is also necessary to ensure that it is undertaken swiftly and to avoid prejudicing any formal investigation. A PE should normally be completed in no more than 2 weeks. Whist the PE it is not a formal process, it will always include discussion with the doctor / dentist concerned. It is recognised that practitioners may wish to draw upon the support, advice and representation of the relevant organisation, for example, the BMA or relevant Defence Body. iv) Options The AMD has the following options to deal with any matters raised under these procedures, once a PE is complete. In advance of making a decision about what course of action to follow (other than a) the AMD should discuss the matter with the appropriate General Manager and alert the Medical Director. a. b. c. d. e. f. g. h. i. there is no substance in the allegations and therefore no further action is necessary; the case is one which the AMD considers suitable to be dealt with outwith the formal disciplinary process; the procedures for sick doctors set out in NHS Circular 1982 will apply; the allegation is of personal misconduct, in which case the disciplinary provisions set out in the Board’s Disciplinary Policy and Procedure will apply; the case is appropriate to be dealt with under the Professional Review Machinery (1990 (PCS) 8, Annex A); the case involves less serious allegations about professional misconduct or competence and is suitable for the intermediate procedure (1990 (PCS) 8, Annex B; or the case involves allegations concerning serious professional conduct or competence and should be dealt with in terms of (1990 (PCS) 8, Annex C); involvement of the relevant Royal College External Advisory Team (ECAT) as set out in PCS 9DD) 1999/7 or another agreed College process. involvement of the National Clinical Assessment Service (NCAS); In considering whether d, f or g above is appropriate, the Associate Medical Director will have regard to the content of NHS Circular PCS 2011 (DD) 9 in determining the classification of conduct and will notify the practitioner accordingly. If the practitioner is dissatisfied with the decision they may appeal to the Medical Director within seven days of receipt of the formal notification of classification. The Medical Director The Medical Director will be responsible for convening a Classification Appeal Committee as specified in the aforementioned circular. If a decision is taken by the AMD to deal with the concerns outwith the formal disciplinary process, the outcome of this approach should be communicated to the appropriate General Manager and Medical Director. A range of options, which is not exhaustive, is listed in Appendix 2. An Occupational Health referral should be considered in cases where options b – i above are being pursued. If there is ongoing concern about a doctor’s professional conduct or performance, no matter what option is being pursued, the relevant Associate Medical Director and General Manager should ensure that appropriate arrangements are put in place for further monitoring of the practitioner until the matter is fully resolved. 3. Terms and Conditions Context The Board has an agreed Management of Employee Conduct Policy and procedure for dealing with disciplinary procedures involving personal conduct issues. For matters relating to professional competence and conduct, the processes are set down nationally, as laid out NHS Circular 1990 (PCS) 8, 1990 (PCS) 32, PCS (DD) 1994/11, PCS (DD) 1997/7, PCS (DD) 2001/9. 4. Poorly Performing Doctor/Dentists, NCAS and the GMC If a decision is made to make a referral to NCAS on professional competence grounds (not ill health) this must only follow a PE as referred to above. If performance remains a serious concern or there are immediate issues affecting patient safety, it may be appropriate to contact the GMC/GDC. Any referral to NCAS or the GMC/GDC should only be taken by an AMD after discussion with the Board Medical Director. The decision to refer will be discussed with the doctor / dentist concerned in advance of the referral being made. 5. Suspension Guidance on the conduct of Medical and Dental suspension is laid out in PCS (DD) 1994/11, later modified by PCS 9DD) 1999/7. The procedure set out in Appendix 1 must be followed in relation to any suspension of medical/dental staff. In all cases, suspension should only be considered once all other options have been fully explored. 6. Right to Representation At all stages of the procedure referred to above, the doctor/dentist will have the right to be represented by his/her Trade Union, Professional Association or Defence Body. Appendix 1 Procedure for Dealing With the Suspension of Medical/Dental Staff This procedure should be used in respect of the suspension of medical/dental staff on any grounds, including both personal and professional conduct and professional competence. 1. Suspension may be considered when a member of staff needs to be immediately removed from the employing body’s premises to protect the interests of patients, other staff, or the practitioner and /or to assist in the investigative process. 2. The authority to suspend, or extend a suspension period is vested in the Associate Medical Director and the General Manager of the service. The practitioner will be advised of their rights by the suspending officer. 3. Suspension is not a disciplinary sanction and will only be considered when all alternative options have been considered. 4. The decision to suspend will be conveyed to the doctor / dentist concerned privately, with a management witness present. The doctor / dentist will have the right to representation. The Chief Executive Medical Director, Human Resources Director and Chief Operating Officer should be informed of the suspension by the suspending manager at the earliest opportunity. 5. Identification badges will be retained by the Board during the period of suspension and will be requested during the verbal suspension meeting. If for any reason the identification badge cannot be provided during this meeting, the doctor / dentist will be required to return it to the relevant General Manager at the earliest opportunity. 6. The Human Resources Director will inform SGHD when any doctor or dentist is suspended. The name of the practitioner, their specialty, the date of suspension and the reasons for the suspension should be given. The Human Resources Director will provide monthly progress reports, which will include information on progress to date, the reasons for any delay in resolving the case, an explanation of how it is proposed to overcome these delays, the costs incurred and the anticipated date of conclusion of the disciplinary process. 7. The suspension should be immediately confirmed in writing, to the suspended clinician. This confirmation will clearly state the effective date, time, content of the allegations. The suspended clinician will be advised that an investigation will follow, its anticipated duration, which policy applies and all other relevant conditions. 8. The nature of suspension isolates practitioners from their normal organisational support mechanisms. Suspended practitioners must not contact any colleagues other than the suspending officer and a designated contact person, who will be identified at the outset and who is responsible for keeping the suspended practitioner updated on the progress of the investigation. 9. The suspension will be on full pay. 10. The particulars of the allegations should be investigated and clarified within 10 days. Where this is not possible, the practitioner should be told why and informed when further information will be provided. 11. There should be provision in all cases for review of the suspension as the investigation continues. At each review, careful consideration should be given as to whether the interests of patients, other staff, or the practitioner and/or the needs of the investigative process continue to necessitate suspension. This process should also take into account the option of the practitioner returning to limited or alternative duties where practicable. 12. A review of the position should normally be undertaken at least every 2 weeks and the outcome reported to the Medical Director, Human Resources Director, Chief Executive and the appropriate Committee of the Board. 13. The practitioner will be informed of the outcome of each review by the designated contact. 14. After a minimum period of 8 weeks of suspension, a doctor can request a review of their situation by writing to the Director of Human Resources stating the reasons why they feel 15. 16. 17. 18. 19. their suspension should be lifted. The Director of Human Resources and the Medical Director will undertake a review of the reasons for suspension and the current status of any investigation and will inform the doctor within 2 weeks from the date of his/her letter of their decision. If the investigation has not been completed within 3 months of the date of suspension, a report should be made to the Chief Executive, Medical Director and Director of Human Resources, outlining the reason for the delay and indicating how long the suspension is expected to continue, together with a plan for completion of the investigation. If the suspension continues, reports should be made by the suspending manager on a monthly basis to the Chief Executive, Medical Director and Director Human Resources. If at any time after the practitioner has been suspended, investigation shows that either the allegations are without foundation or that further investigation can continue with the practitioner working normally, the suspension should be lifted and the practitioner allowed to return to work as soon as practicable. Appropriate arrangements will be put in place to facilitate the return. Whilst it is impractical to lay down strict time limits for the overall duration of suspension, it should be kept to an absolute minimum in all cases. During the period of suspension, practitioners may not take up locum employment without the express permission of the Board. The practitioner will be required to inform any prospective employer, including those within the private sector, of his or her suspension and advise them that they are required to contact the Board, in writing, with reference to the reasons for the suspension. Appendix 2 Options Available When Formal Action is Deemed Unnecessary 1. Organisational issues identified - assistance will be provided to the individual doctor, or to the wider team, to assess and resolve any organisational problems. 2. Specific Personal Development Need identified – where the individual doctor is aware of a specific development need, the provision of a specific training opportunity may be agreed as the appropriate response to the concern. The doctor will provide evidence to his/her AMD and appraiser that the educational objective has been satisfactorily met. 3. Assessment of Training Need Identified – as assessment will be commissioned through the doctor’s Royal College, Specialty Group or other agreed process. Outcomes might include targeted training, re-training or a mentorship arrangement. (See 4). 4. Mentoring – a mentor will be provided to work with the doctor. The doctor will need to agree to work with and participate in the mentoring process. The mentor will be an experienced clinician who works for the Board or, by agreement, someone who works in another NHS organisation. The issues to be addressed will be agreed in a letter provided by the AMD. Regular reports on progress will be provided by the mentor and a final report submitted to the AMD. It is expected that the final report will be agreed between the doctor and the mentor. 5. Coaching – a coach will be identified to work with the doctor to address identified development needs.