Suspension in the NHS

Welcome. This site has been set up because I have survived suspension so know what a lonely and humiliating experience it is. By its very nature, it cannot be described as a neutral act whatever Employment Law says.

People who have been unjustly or unnecessarily suspended are left so traumatised by this devastating experience that many never return to work in the NHS. (People who have gone off sick because of bullying and harassment or false allegations made against them, experience very similar distress.)

Why these pages have been written

Firstly these pages have been written to assure you that you are not alone. Since the web site was started in June 2003, 189 NHS employees have contacted me, 157 of whom were nurses or midwives. This is no consolation to you at all nor do I know if this is just the tip of the iceberg. Some were potential whistleblowers who had the whistle blown on them instead. A number have said they have been suicidal. Family members suffer very serious distress and trauma too.

Another purpose of the pages is to share experiences of what might happen and what you can do, based on what people have told me and what I have learnt from my own experiences. Before it happened to me, when I heard of a trailblazing nurse’s suspension, I remember thinking she must have done something to warrant such drastic action. I now know better!

At present there is a two tier service for employees of the NHS. The doctors and dentists are the top tier. The rest of us do not warrant the expense of the National Clinical Assessment Service, which advises organisations what action to take when allegations are made.

There are now safeguards for staff, which mean you must not be suspended unless the situation meets certain criteria, described in two documents.

The Incident Decision Tree

The first document is the work of the National Patient Safety Agency (NPSA) which has produced the Incident Decision Tree (see www.npsa.nhs.uk/idt ). This is a flowchart to help managers decide what action to take if a patient safety incident has occurred or has been alleged. Its purpose is to help ‘promote an open and fair culture in the NHS’ and ‘to help managers determine a fair and consistent course of action to take with staff following a patient safety incident’.

This is more fully explained in ‘Information and use’ of the Incident Decision Tree which gives examples of situations that demonstrate what might have been intended and what action to take. It stresses the importance of supporting and protecting staff.

The alternative to suspension, if there are concerns about the clinician’s practice, is to place restrictions on their practice, for example not administering medicines if they have made repeated drug administration errors.

There is also the need to look at systems and learn from the incident. The questions to be asked are how the incident happened and why. The NPSA web site has a learning tool for conducting root cause analysis. This is a way of looking at critical incidents and near misses to look for systems failures and learn from them, to prevent re-occurrences.

This is a very positive improvement on the old NHS culture of seeking to blame and punish individuals and to learn nothing. Sadly, some managers seem to be ignorant of these developments or are ignoring them.

The Directions

The second document is the Directions ie they have to be followed. They were first published by the Department of Health for doctors and dentists. (See the website www.dh.gov.uk , A-Z site index: D, scroll to Doctors and dentists discipline and suspension.) The Directions are vital in the handling of your case because their principles apply to all staff. (See the Frequently Asked Questions section of the Directions.)

These Directions are based on ACAS best practice and lay down clear timescales and processes. For example, there is a two weeks’ time period allotted for the initial investigation, carried out to ‘establish the facts in an unbiased manner’ not to ‘secure evidence against the practitioner’. There is to be openness, good communication, support for staff, innocence presumed unless evidence shows otherwise, speedy resolution, etc, etc.

The Directions make it clear that staff may be suspended and refused contact with their workplace only if they constitute a risk to patients or staff or if it is thought they may tamper with evidence. Otherwise they must be kept in touch, to keep up to date with developments and maintain their skills.

What you can do if your managers are ignoring these official procedures and guidelines and their own trust policies and procedures

If there is a general culture of bullying and a significant number of staff willing to speak to the Healthcare Commission, you could collectively make a complaint to them. (See www.healthcarecommission.org.uk.) The Healthcare Commission has the power to order an enquiry and has already done so in some cases. They are also planning to set up regional centres which can more readily respond to situations where procedures are not being followed.

From the stories received, some are excellent but many are disappointing and appear to do little to protect the union member. (See the report ‘The role of unions in NHS suspensions’ on this site.)

You can find out who your local employment solicitors are by looking at www.lawsociety.org.uk The site will also give you advice about the service solicitors offer and how to prepare for meetings with them. Check your household insurance policy. Some will pay up to £50,000 legal costs.

Sick organisations

On Nov 6^th 2003, the National Audit Office published their report into the management of suspensions of clinical staff in hospital and ambulance trusts in England (see www.nao.gov.uk to read it for yourself). Their findings were alarming.

They echo on a large scale what you have been saying to me in your emails. There seems to be a pattern to it all. The investigations are flawed. We reply but our replies are ignored. No-one is listening. It is not what they want to hear.

Some of the allegations are malicious. The people making them have made themselves secure in their organisations with ‘champions’, so that they are hard to challenge.

The time things take is lengthy and destructive. People end up in someone’s pending tray and that person is not sure what to do! Occasionally it is found that there is no case to answer. Only two people have told me of receiving apologies. The rest have been expected to return to work as though nothing had happened.

The outcomes have to justify the draconian action taken so there is no justice, and they are generally a waste of people and their skills.

People may be made to return to some re-training programme that is almost as stressful as the investigation and disciplinary hearing, or they have to take early retirement due to ill-health. (This is causing great financial hardship to some people, to the point of costing them their home.)

Another possible outcome is that they go to employment tribunal or sue their former employers. That is not an easy option to take, causing continued untold stress and distress and possible financial ruin. It also takes yet more money away from the NHS.

What has been happening nationally

On Jan. 28^th ’04, the Public Accounts Committee (PAC) members who requested the National Audit Office report into management of suspensions (6^th November 2003), questioned Professor Sir Liam Donaldson, Chief Medical Officer, Sir Nigel Crisp, Permanent Secretary NHS Chief Executive, and Andrew Foster (now Sir), Director of Human Resources from the Department of Health.

At one point the PAC members asked why the Directions do not apply to all NHS staff and the reply was that the Chief Nurse’s Office was looking into this in conjunction with the National Clinical Assessment Authority (now the National Clinical Assessment Service, part of the National Patient Safety Agency). This body advises organisations how to deal with allegations against doctors and dentists and has prevented over 80% of intended suspensions in the referrals made to them.

The PAC members asked for further information which subsequently took the Department some time to provide. The PAC’s final response for the Government was published on 16^th November 2004. It is the 47^th Report of Session 2003 – 04 and can be viewed at www.parliament.uk/pac . Interestingly, the report made the point that under the Employment Act 2002, disciplinary action has to be consistent across any employing organisation ie the Directions should apply to all staff.

The Department of Health had requested NHS Employers to produce guidelines for suspensions of all other NHS staff but this work has now been taken over by the Chief Nurse’s Office.

However we already know from the National Audit Office report that whilst some organisations will work by guidelines, many do not. Moreover managers need expert guidance in these litigious days. We need a one tier NHS employment service.

No-one pretends that allegations are an easy situation to deal with but the problem is huge and urgently needs addressing for all staff.

Ten percent of nurses and midwives left the NHS last year (NT 24 Aug. ’04) One in five trusts mentioned stressful working conditions as the main reasons why staff left.

It is a terrible indictment that the NHS causes staff to experience unnecessary, devastating, and in some cases life threatening, work induced illness. Until it is obligatory for all NHS trusts to report and be accountable to the DoH for the suspension of staff, with external supervision in place, there seems to be no end in sight.

Finally how you can help

When I tell people the numbers who have made contact through the web site, they are shocked that there are so many of us suffering, or who have suffered, in this way.

I hope you can muster the strength to contact me to add to that number. People feel very vulnerable and intimidated by their organisations. Please rest assured that I will treat your email in the strictest confidence and will not disclose any of your details.

PS If you contact me and don’t receive a reply within 1 to 7 days, please will you try again. (If I am away on annual leave I usually try and put it on the site.) A few people have emailed me and my reply has failed to deliver.

I am indebted to my family for their love, help and support, and especially to my husband and daughter for reading some of these documents and improving them and to my son who manages the web site for me and advises, also our two other children.

PS2: If you live in the West Midlands area, there is a support group called Dignity At Work Now, DAWN that meets monthly at Harborne, Birmingham. You will find details and information especially for victims of bullying at www.dignityatworknow.org.uk

http://p104.ezboard.com/bnurse2go

PS4 COMMENT from someone who is back at work now.
Please keep up the good work and don't let these issues be swept under the carpet. Personally I have moved on since my suspension, and am in a new job but my case was so very badly handled and so traumatic for me, that, as I told my manager at the time, it will live with me to my dying day, and it only takes one thing to bring it all back to me with graphic clarity, a bit like post traumatic stress syndrome I suppose.
Nothing changes because a colleague was suspended earlier this year and she faced the same feelings of despair and isolation as I did - when I asked if I could support her I was reminded that she should have no contact with anyone within the PCT, and I was then interviewed to ascertain whether she had breached the rules of her suspension by contacting me. I was not involved in any way with her professionally and I could have offered support from a dispassionate stance, but this was not allowed.
Keep it up because if it stops one person going through what I went through then it is all worth it. .

Julie writes:
THIS IS AN INFRINGEMENT OF THAT PERSON’S HUMAN RIGHTS AND IF NHS STAFF HAD THE SAME MANDATORY GUIDELINES THAT DOCTORS AND DENTISTS ENJOY, EMPLOYERS WOULD HAVE TO KEEP STAFF CLINICALLY UP TO DATE.
It is only if there is a criminal investigation underway that this would not be possible.

Court Update February 2008

In February 2007 a judge ruled that suspension is not a neutral act and cannot be applied to non clinical duties – see http://www.bailii.org/ew/cases/EWCA/Civ/2007/106.html

Mezey v South West London and St George’s Mental Health NHS Trust

A High Court injunction has forced an employer to allow a suspended employee to return to pending a disciplinary investigation. Dr Mezey was suspended on full pay from all of her duties when a patient in her care committed murder whilst on release from the hospital. Dr Mezey claimed that the suspension was a breach of her contract, and relied on a Department of Health document (2003/012) which essentially stated that exclusion from work should be reserved for only the most exceptional circumstances.

The High Court held that the implied term of trust and confidence had the effect that any implied power to suspend had to be exercised in a way no less favourable to doctors than required. By suspending Dr Mezey from all duties (e.g managerial, administrative and academic), and not just her clinical duties, the Trust had failed to apply this approach. The High Court therefore granted an injunction which restrained the Trust from suspending Dr Mezey from her non-clinical duties.

The Court of Appeal subsequently refused the Trust permission to appeal the High Court’s decision. This is an important case, especially for public sector organisations, as employers may not simply be able to rely on their own disciplinary procedures in justifying a suspension. Careful thought at the outset must be given to the reasons for considering a suspension, and whether the employee really needs to be removed from all aspects of their duties.

Stop

Campaigning against the misuse of staff suspension in the NHS

STOP PRESS 23RD JANUARY 2006

See how suspensions/exclusions should now be handled www.ncas.npsa.nhs.uk. Look at the Toolkit. It has 8 headings and describes good practice, with cases to explain the points being made. You will be shocked to compare your organisation’s mishandling of your case. Bring it to your union rep’s attention too. See NCAS (National Clinical Assessment Service) heading at the side here for some quotes of principles being followed.

As NCAS work has bedded down, it has become clear that many good practice ideas are relevant beyond doctors and dentists. Everyone working for the NHS should expect good management so this site is an educational resource not just for people managing doctors and dentists but for all NHS managers.

Investigating

In everyday use, ‘investigating’ means simply a search for the truth. In a clinical performance context, however, it may help to distinguish investigation – what happened? – from analysis and assessment – why it happened and what might be done to stop it happening again? Sometimes an informal investigation will deal with both, but a formal investigation should always be confined to the ‘what?' question and leave separate decision-making processes to work out what to do next.

Clarify what happened

This is where we use the term ‘investigation’ in a broad sense. Performance concerns may involve culpability but they might also result from systems or training failures. A patient complaint might be involved, putting managers under pressure to respond to the vigour of the complaint as well as the facts of the case. There might also be a problem with the clinician’s health. The investigation needs to dissect a problem in order to identify the most appropriate action. In the case of system failures, remedies may be organisational rather than individual.

Outside the contractor services, general disciplinary processes will normally be used to deal with personal misconduct which any NHS employee could commit - theft, fraud, or unacceptable behaviour. Professional processes are for difficulties arising from the exercise of medical or dental skills, though the line is not always easy to draw. If a doctor is rude to a patient, is this a personal or professional conduct issue? The courts have tended to give professional conduct a broad interpretation.

An investigation needs to inform the decision about what to do next and the procedures to be used. If there are both personal and professional conduct concerns, it might be necessary to prioritise actions – deal with a major personal conduct issue first, for example, and defer action on minor professional concerns. But that does not stop you carrying out a concurrent investigation of both, and the prioritising decision should be delayed until an informed overview can be taken.

Root cause analysis (Investigating: point 6)

Root cause analysis is a structured retrospective technique for looking for the underlying causes of a patient safety incident, behind the immediate and obvious cause. For example, one practitioner’s human error might be the immediate cause but several factors could have contributed to the error, such as fatigue, or an inadequate checking system, or a culture which discourages junior staff from challenging an instruction of a more senior person even when it sounds wrong. In health care, things usually go wrong for a combination of reasons and a combination of corrective actions are often needed.

The National Patient Safety Agency is promoting root cause analysis and encouraging organisations to identify the circumstances in which it should be used. This should take account of the severity of the incident and the scope for learning from it.

Investigating point: 8

The possibility of victimisation is considered without the clinician under investigation having to raise it.

Differences in work style are normally expected by colleagues and tolerated. But sometimes a different style will attract criticism and come to be seen as a sign of poor performance. If the person first categorising performance as poor is influential, then others may take the same view.

Bullying can easily arise when people are intolerant and there is weak leadership. There is a large literature on bullying amongst health professionals, though this probably reflects growing awareness rather than increased occurrence. Deliberate cruelty is rare, anywhere.

The Myers Briggs psychometric test uses (amongst other dimensions) a ‘thinker-feeler’ classification to look at how people make decisions. ‘Thinkers’ use logic and argument and may be outspoken. ‘Feelers’ have more regard for the feelings and values of others, but may be slow to get to the point and not recognise that thinkers need to work things out in a different way. It is easy to see how feelers could feel bullied by thinkers and how thinkers could be exasperated by feelers. Other personality typing (perfectionism, self-criticism) also throws light on how colleague relationships can derail into victimisation and allegations of bullying when dominant or preferred work styles clash.

Documenting

Personal files are the organisation’s memory, still there when managers have moved on. If a performance problem arises, a file should tell you about any earlier difficulties. If you are asked to give a reference it needs to be fair, factually accurate and supportable using information on file. Don’t say anything that you are not prepared to share with the person concerned.

For the NHS, the personal files of clinicians and other staff are governed by the same structure of rules as patient records. They are confidential. Notes associated with the investigation of complaints have to be kept for defined periods. The Data Protection Act gives people the right to access most of the information held about them.

Once discussions about a performance concern become formal, it is good practice to explain what is going onto the file as discussions take place. Since access can be sought at any time, it is also good practice to have a transparent process for letting people see their files.

Style of documentation will depend on the stage that a performance management episode has reached, but style should be consistent from case to case. HR staff should check drafts to ensure that they cover all essential areas, reflect good employment practice, are consistent with local policies and practices and give accurate information about issues such as rights to representation or rights of appeal

Supporting

Most people working in health care are defined by their work and professional culture. The idea that they could be performing unacceptably or inadequately is likely to be both distressing and surprising. They may respond with denial and anger, even if the challenge is quite minor. They will need managerial support if work relationships are not to be permanently damaged.

Support should be tailored. The doctor or dentist may be under stress for reasons not connected with work and there may be other health problems as well. Keeping the doctor or dentist in the communication loop will be important. Whatever is happening, make sure developments are explained, that there are opportunities to ask questions, on-going access to managers and regular contact so that the clinician does not become isolated. Bring in occupational health support if this is not already in place, provide information about other sources of support and check that the clinician has an understanding friend to confide in.

A defence organisation, college or professional association may also be providing support. That should not stop the employing/referring organisation itself offering help.

Rebuilding

The Code of Conduct for NHS Managers places a duty on managers to help staff ‘maintain and improve their knowledge and skills and achieve their potential’. In hospital and community care the Department of Health’s new framework for handling concerns recognises the importance of training or other remedial action and does not rely on disciplinary action alone. In primary care, similarly, PCOs (primary care organisations) have a responsibility to help contractors meet quality requirements if they get into difficulty.

CAUSE (UK)