Document Title Handling Concerns about Doctors Policy CNTW ...… · the matter under investigation. The Trust will operate consistently with the guiding principles of the current

Document Title Handling Concerns about Doctors Policy

Reference Number CNTW(HR)02

Lead Officer

Lynne Shaw

Acting Executive Director of Workforce and Organisational Development

Author(s)

(name and designation)

Amanda Venner

Head of Workforce Planning and Medical Education

Eilish Gilvarry

Deputy Medical Director for Revalidation & Appraisal

Ratified by Business Delivery Group

Date ratified Jun 2018

Implementation Date Jun 2018

Date of full implementation

Jun 2018

Review Date Jun 2021

Version number V03.2

Review and Amendment Log

Version Type of Change

Date Description of Change

V03.1 Update Jun 19 Section 0.5 New Information about available BMA services

V03.2 Update Oct 19 Governance Changes

This Policy supersedes the following Policy which must now be destroyed:

Document Number Title

NTW(HR)02 - V03.1 Handling Concerns about Doctors

Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust CNTW(HR)02 - Handling Concerns about Doctors – V03.2- Oct 19

Handling Concerns about Doctors Policy

Section Contents Page No.

0.1 Introduction 1

0.2 Purpose 2

0.3 Confidentiality 2

0.4 Right to be accompanied 2

0.5 Pastoral Care 3

0.6 Equal Opportunities 3

0.7 Doctors in Training 3

0.8 Involving the National Clinical Assessment Service (NCAS)

4

0.9 Duties 4

0.1 Roles and Responsibilities 4

0.12 Burden of Proof 9

0.13 Standard of Proof 9

0.14 Criminal Acts 9

0.15 Termination of Employment with unresolved issues 10

0.16 HCAD Process Chart 11

1 Standards of Behaviour & Conduct 12

1.7 Disciplinary Rules 13

2 Supportive/Line Management Phase 15

2.7 First Actions 15

2.13 What happens once the facts are established 16

3 Handling Concerns – Determination and investigation of concerns

18

3.0 Identifying a problem 18

3.11 Appointing a Case Investigator 19

3.13 The Investigation 20

4 Procedure for dealing with issues of Conduct 24

4.3 Informal Resolution 24

4.6 Formal Disciplinary Hearing 24

4.16 Disciplinary Sanctions 27

4.18 Appeals 28

5 Procedure for dealing with issues of Capability 29

5.5 How to proceed where conduct and capability issues are involved

29

5.9 Capability procedure 30


5.24 Capability Hearing 33

5.27 Decisions 34

5.33 Appeals 34

6 Procedure for dealing with issues of Ill Health 39

6.5 Reasonable Adjustments 39

6.8 Handling Health Issues 40

6.17 Appeals 41

7 Restriction of practice and Exclusion from work 42

7.3 Principles 42

7.8 The exclusion Process 44

7.29 Informing Other Organisations 47

7.34 Informing the Trust Board 47

7.36 Regular Review 47

7.46 Return to Work 49

8 Conclusion 51

8.0 Associated documents 51

8.1 Fair Blame 51

8.3 References 51

8.4 Identification of Stakeholders 51

8.6 Fraud, Bribery and Corruption 52

8.8 Training 52

8.10 Implementation 52

8.12 Monitoring 52

Standard Appendices – attached to policy

A Equality Analysis Screening Toolkit 53

B Training Checklist and Training Needs Analysis 56

C Audit Monitoring Tool 58

D Policy Notification Record Sheet - click here

https://www.cntw.nhs.uk/about/policies/appendix-d-policy-notification-record-sheet/


Appendices – listed separate to policy

Appendix No: Description

Appendix 1 Dealing with Performance Concerns with Doctors in Training – Procedure

Appendix 2 Supporting documents for Section 2 – Supportive/Line Management stage

Appendix 3 Scheme of Delegated Authority

CNTW(HR)02

1


0.1 Introduction This policy sets out the Trust’s procedures for handling concerns about the conduct, performance and health of doctors and dentists. These procedures implement “Maintaining High Professional Standards in the Modern NHS” which was issued under the direction of the Secretary of State for Health on 11 February 2005. This document covers:-

Handling concerns – Determination and Investigation of allegations

Conduct and Disciplinary procedure

Procedure for dealing with issues of capability

Handling concerns about a practitioner’s health

Restriction from practice and Exclusion from work This policy applies to all medical and dental staff employed by Cumbria, Northumberland Tyne and Wear NHS Trust (CNTW). The Trust has established those standards of behaviour and conduct that it expects from all employees, including medical and dental staff (“Practitioners”). These are set out in SECTION ONE. In addition, the professional standards expected of doctors are set out by the General Medical Council (GMC) in “Good Medical Practice” (April 2013) and the professional standards expected of dentists are set out by the GDC in “Maintaining Standards” (Sept 2013). The Trust requires doctors to comply with the GMC professional standards and requires dentists to comply with the GDC professional standards. The Trust actively encourages all staff from the outset to seek support during any stage. Guidance on the supportive/line management phase is set out in SECTION TWO. Guidance on the determination and investigation of allegations is set out in SECTION THREE. If the problem is designated as one of conduct, the Case Manager will direct that it be considered under SECTION FOUR. If the problem is designated one of capability the Case Manager will direct it to be considered under SECTION FIVE. At times, conduct and capability may be inseparable and a judgement will be made by the Case Manager about the most appropriate procedure to follow. If the problem is designated to be one relating to a Practitioner’s health, the Case Manager will direct it to be considered under SECTION SIX.

CNTW(HR)02

2


Whilst every effort will be made to allow a Practitioner to remain at work, in the unusual event that formal exclusion or restricted employment is required this will be dealt with under the Trust’s procedures set out in SECTION SEVEN. A conclusion is covered in SCETION EIGHT. Those undertaking investigations or sitting on Panels or Appeals must have received the appropriate training in the operation of these Procedures.

A flowchart summarising the processes involved can be found on page 11. 0.2 Purpose The purpose of this policy is to ensure the continuous management of performance, with a view to identifying problems. Numerous ways now exist in which concerns about a practitioner’s performance can be identified; through which remedial and supportive action can be taken quickly before problems become serious or patients harmed; and which need not necessarily require formal investigation or the resort to disciplinary procedures. This policy will support managers and staff and recognises that most failures in standards of care are caused by system weaknesses, not individuals per se. 0.3 Confidentiality The Trust shall maintain confidentiality at all times. No press notice will be issued, nor the name of the practitioner released, in regard to any investigation or hearing into disciplinary matters. The Trust will only, if asked, confirm that an investigation or disciplinary hearing is underway. The decision made to proactively release information, in advance of a request from the media, will be taken by the Chief Executive in conjunction with the Head of Communications and a formal record of the reasons for the decision will be retained. Personal data released to the case investigator for the purposes of the investigation must be fit for the purpose, and proportionate to the seriousness of the matter under investigation. The Trust will operate consistently with the guiding principles of the current Data Protection Act 1998. 0.4 Right to be accompanied Any practitioner covered by this policy and procedure may be accompanied by a friend, partner/spouse, work colleague or trade union/defence organisation representative. The companion/representative may be legally qualified but they will not be acting in a legal capacity. This means that a lawyer, (solicitor or a barrister), cannot advise as a “friend/partner/spouse” on any kind of remunerated or professional basis. The right to be accompanied extends to any of the meetings or hearings referred to throughout the policy and procedures.

CNTW(HR)02

3


In general, there is no need for witnesses to be accompanied. If a witness requests a friend or supporter to be present, the investigator may allow this but the friend should take no part in the interview and should not answer questions or make statements on the witness’s behalf. Accurate records should be kept of all interviews. Interviewees may feel inhibited by the use of recording equipment. If recording is proposed, do not turn the equipment on until the interviewee has agreed to its use. Explain why you would prefer to use it, who will be entitled to listen to it and how long the recording will be retained before being erased. If the witness does not agree, have a note taken by a second person, so that the investigator can concentrate on asking questions. 0.5 Pastoral Care To recognise the need for pastoral care during these proceedings, the practitioner may agree with the Case Manager a member of staff who will be able to provide pastoral care, mentorship and personal support. This must be agreed with the Case Manager prior to the initial contact being made. The member of staff providing mentorship and support must not be connected in any way to the concerns raised and may not participate, or in any way influence, the investigation or subsequent proceedings. The Trust recognises that any investigation process can be very stressful for the practitioner. There are a number of organisations who provide free support to doctors and dentists who are the subject of these procedures. Details of these organisations can be provided on request. Members of the BMA, non-members and medical students are be able to access support from the BMA Wellbeing Support Services, which includes professional counsellors and peer support, 24 hours a day via 0330 123 1245 or [email protected]. Alternatively you can visit https://www.bma.org.uk/advice/work-life-support/your-wellbeing/counselling-and-peer-support for more information. Care First provides confidential, professional counselling, information and advice services 24 hours a day, 365 days a year. This service is free for you to access whenever you need. You do not need to ask permission from your manager or organisation before contacting Care First. To contact Care First call 0800 174319. 0.6 Equal Opportunities All managers and directors who are involved in undertaking investigations or sitting on disciplinary/capability panels or appeals panels shall have undertaken formal equal opportunities training prior to undertaking such duties. Case Managers, Case Investigators and Panel Members should be trained in the operation of the disciplinary, capability and ill health procedures. 0.7 Doctors in Training Concerns about doctors in training should be considered initially as training issues

mailto:[email protected]

https://www.bma.org.uk/advice/work-life-support/your-wellbeing/counselling-and-peer-support

https://www.bma.org.uk/advice/work-life-support/your-wellbeing/counselling-and-peer-support

CNTW(HR)02

4


and the LET and Associate Director for Postgraduate Training/DME should be involved from the outset. (See Appendix 1: Dealing with Performance Concerns with Doctors in Training) 0.8 The National Clinical Assessment Service (NCAS) There are a number of references within this policy and procedure to NCAS. The Trust will consult with NCAS at an early stage. When action in relation to clinical concerns are being considered the Trust will work with NCAS to ensure that, wherever possible, alternatives to exclusion are considered. Doctors or Dentists are also able to contact NCAS directly. NCAS can be contacted at: NCAS, Area 1C Skipton House 80 London Road London SE1 6LH 020 7972 8170 http://www.ncas.nhs.uk/ 0.9 The Duty to Protect Patients Throughout the policy and procedure there is an overriding duty to protect patients. Protecting patients includes:

Protecting the health, safety and wellbeing of the public

Maintaining public confidence in NHS services provided by Cumbria, Northumberland Tyne and Wear NHS Trust

Promoting and maintaining proper professional standards and conduct of Medical and Dental Staff

0.10 The Duty to Cooperate It is recognized that it is in the interests of both the affected practitioner and the Trust to ensure the procedures set out in this document are carried out efficiently and without unnecessary delay. All parties will co-operate at all times to ensure that this occurs. 0.11 Roles and Responsibilities Case Manager For concerns in relation to Locality Care Group Medical Directors, the Executive Medical Director will act as Case Manager but may be supported by a Deputy Medical Director (or Group Medical Director where appropriate) in aspects of the work involved in case management. He/she may also delegate the role of Case Manager to oversee a case on his or her behalf. Group Medical Directors (GMDs) shall act as Case Manager for all other grades of Medical Staff.

http://www.ncas.nhs.uk/

CNTW(HR)02

5


The Case Manager’s role is to: -

Ensure that the investigation is conducted efficiently

Prepare the Terms of Reference for the investigation

Ensure that confidentiality is maintained where appropriate

Act as the coordinator between investigator(s), the practitioner and anyone who the investigator(s) need to interview

Obtain any documentation required

Ensure that the process is properly documented

Receive the investigator’s report

Determine what action will follow, if any, having regard to the contents of the case investigator’s report

Review the requirement for exclusion, if applicable

Liaise with NCAS To be seen to be objective, case managers need to be able to demonstrate that they:

Understand the general nature of the concerns raised and the clinical and work contexts in which they occurred

Are familiar with the local policy for investigating concerns and related procedures

Have access to relevant advice and expertise from colleagues within the organisation

Have access to relevant external experts and authority to instruct them should the Case Manager consider this to be necessary

Have the necessary protected time to support the investigation The Case Manager should have no conflict of interest in relation to any aspect of the investigation. Case Investigator An investigator’s role is to collect and examine relevant evidence and complete the investigation in line with the terms of reference set by the Case Manager. The investigator will ask the doctor or dentist (“the practitioner”) for a response to the concerns raised, may examine any witnesses and may collect such information as he or she sees fit in order to carry out the investigation in line with the Terms of Reference. The Case Investigator will produce a report which accurately captures all relevant details and will allow the Case Manager to determine what action, if any, should follow. All investigators have a duty to maintain confidentiality and ensure that the investigation is documented appropriately. Usually investigators can be identified within the Trust but occasionally it is necessary to commission an external expert where a suitable person is not available internally. All investigators must be asked to confirm at the outset that there are no real or perceived conflicts of interest disqualifying them from doing the

CNTW(HR)02

6


work in question. As for Case Managers, it may not be possible to identify an investigator totally without knowledge of the practitioner in some administrative capacity. Any concerns about potential impartiality should be raised at the outset. When asked to undertake an investigation, an investigator should be able to demonstrate that they:

Have the necessary expertise to conduct the investigation. In the event that the nominated investigator does not have a relevant clinical background they should ensure that they obtain appropriate advice where issues of clinical judgement are raised. If there are no other senior clinicians with the relevant expertise, a senior clinician from another NHS body should be involved

Understand the work context of the practitioner

Have time to complete the investigation and report within the timescales required by this policy

Where more than one investigator is instructed, a lead investigator should be nominated to lead the investigation, ensure compliance with the terms of reference and complete the report. An investigation will often then begin with a planning meeting or discussion between the Case Manager and investigator(s) to determine, for example:

What documents need to be seen

Who will be interviewed

How to manage administration of the investigation

Means of communication with the practitioner

Other logistical issues The Case Investigator or team will need to take a view on whether patient records need to be accessed to assist the investigation. Normally this will require prior patient consent but in certain circumstances there can be a public interest justification for disclosure without consent. It may be necessary to take advice from the Trust’s Caldicott Guardian in the first instance, and possibly also from the Trust’s legal advisers. Once collected, evidence must be stored safely. Attempts to alter evidence can be prevented if original documents are obtained as soon as possible, and kept securely. Where it is necessary to give the practitioner access to documents, they should be provided as copies or viewed under supervision. The Case Investigator should remain objective and avoid leading the witness through inappropriate feedback or comment. At the end of the interview, the witness should be asked if there is anything else that they wish to add to the evidence that they have given. Following the interview witnesses should be given a comprehensive note and will be provided with the opportunity to make comment on and sign the notes confirming accuracy.

CNTW(HR)02

7


Designated Board Member

For all cases where a Case Manager has been appointed, the Trust’s designated Non-Executive member will act as the “Designated Board Member” to oversee the case

The Designated Board Member ensures momentum is maintained, and that the investigation is being carried out promptly and in accordance with this Policy

The Designated Board Member will monitor all exclusions and ensure that time frames for the investigation are followed and are consistent with Article 6 of the Human Rights Act 1998 and the European Convention on Human Rights

The Designated Board Member will act as a point of contact for the practitioner, and will make himself/herself available after due notice if the practitioner has any concerns about the progress of the investigation or any exclusion from work or classification of case by the Case Manager

Clinical Advisor

The Clinical Adviser is the person who provides clinical advice and guidance to the Case Investigator if relevant where clinical issues arise. He/she will have appropriate specialist skills to advise. If during the course of the investigation it transpires that the case involves more complex clinical issues than first anticipated, the Case Manager should consider whether an independent practitioner from another NHS body should be invited to assist.

Executive Medical Director

To act as Case Manager for Deputy Medical Director and/or Group Medical Director cases

Will delegate the Case Manager role, in relation to Consultants, Assistant Medical Directors or Associate Medical Directors, to an appropriate senior medical manager to oversee the case

To discuss the requirement for exclusions and restrictions with the Chief Executive and the Executive Director of Workforce and OD

To Chair Capability or Disciplinary Panels where appropriate

To appoint a Case Manager for all other grades of medical staff below Consultant level

To appoint the Case Investigator Executive Director of Workforce and Organisational Development (OD)

To provide advice and guidance to the Executive Medical Director prior to the commencement of any formal investigation and to ensure appropriate advice and guidance is available to the Case Manager during the investigation, via the Trust’s HR Advisory Service

Can delegate this role to the Deputy Director of Workforce and OD where

CNTW(HR)02

8


appropriate

To act as Case Manager for concerns relating to the Executive Medical Director

To provide advice to the Executive Medical Director and Chief Executive regarding exclusions and restrictions

Chief Executive

All concerns must be registered with the Chief Executive who must ensure that a Case Manager is appointed

The overall responsibility for managing exclusion procedures and ensuring that cases are properly managed lies with the Chief Executive

HR Advisory Service

To provide advice to all parties on any processes under this policy, excluding the practitioner

Will support or take the role of the Case Investigator, where appropriate, with any formal investigatory process and provide advice only on the preparation of the investigation report

Will support Case Managers, where appropriate, by providing advice on any HR matters

Will log all case management information related to each case Roles and Responsibilities for Remediation

Doctors are responsible for ensuring that they are able to demonstrate, through the appraisal process, that they are meeting the described standards and are making use of the measurements generated to identify their developmental needs

The Responsible Officer (RO) will consider the appropriateness of proposed Remediation Programmes, and approve or reject as appropriate. The RO will sign off completed Remediation Programmes and decide on whether a recommendation can be made for Revalidation as a result

Appraisers must ensure that they have adequate training and support to undertake their role. They must highlight potential performance concerns to the RO and be clear about the Personal Development Plans with regard to performance concerns

Clinical supervisors may be required to provide supervision of a practitioner during a clinical placement and to monitor and report on progress to the programme supervisor. The Clinical Supervisor must be a consultant nominated in agreement with the practitioner. Direct clinical supervision is likely to be required only in cases where there has been an extended absence from the clinical environment

The Programme supervisor will assist the practitioner in compiling a Practitioner Improvement Plan and will oversee the clinical aspects of the

CNTW(HR)02

9


programme as a whole. The programme supervisor will report to the RO on progress against objectives. The Programme Supervisor must be a consultant nominated in agreement with the practitioner

0.12 Burden of Proof Throughout any investigation of allegation(s) of misconduct or deficient professional performance or capability the burden of proof lies with the employer to prove the fact(s) of the allegation made against the employee. It is not for the employee to ‘prove’ that misconduct or deficient professional performance or capability did not take place. 0.13 Standard of Proof During the conduct and disciplinary process the standard used in the assessment of whether or not the fact(s) of the allegation are found proven will be the civil standard (on the balance of probabilities) rather than the criminal standard (beyond reasonable doubt). There is no sliding scale between the two. This means that a fact can, and will, be found proved if it is determined through the due process, after an investigation, that it is more likely than not that it is true. This does not mean that the fact has to be proved beyond reasonable doubt. 0.14 Allegations of criminal acts Action by the Trust when investigations identify possible criminal acts Where the Trust’s investigation finds a suspected criminal act, this must be reported to the police. The Trust’s own investigations should only proceed in respect of those aspects of the case which are not directly related to the police investigation. The Trust must consult with the police to establish whether an investigation into any other matters would impede their investigation. If the Police do not consent to the Trust continuing with an investigation, the Trust must accede to this request. In cases where fraud, corruption, theft or misappropriation of Trust’s funds is suspected, the matter should be referred to the Counter Fraud Officer in line with the Trust’s Counter-Fraud Policy. Action by the Trust in the event that criminal charges are brought, not in connection with an investigation by the Trust In circumstances where criminal charges have been brought against the practitioner, the Trust will need to carefully consider whether the practitioner poses a risk to patients or colleagues and whether the offence if proven is one that makes the practitioner unsuitable for their type of work and whether, pending the criminal trial, the practitioner can continue in their present job, should be allocated to other duties or should be excluded from work. This will depend on the nature of the

CNTW(HR)02

10


offence and advice should be sought from an HR or legal adviser Action in the event of acquittal or insufficient evidence When the Trust has refrained from taking action pending the outcome of a court case, and the practitioner is acquitted but the Trust considers there is enough evidence to suggest that there is a potential threat to patients, staff or members of the public, the allegations should be addressed under this policy. Where there were insufficient grounds for bringing charges or the court case is withdrawn, there is a presumption that the practitioner will be re-instated into their post. 0.15 Termination of employment with unresolved issues Where an employee leaves employment before disciplinary procedures have been completed, any outstanding disciplinary investigation will be concluded and any conduct or capability proceedings will be completed where possible. Where employment ends before investigation or proceedings have been concluded, every reasonable effort will be made to ensure the former employee remains involved in the process. If contact with the employee has been lost, the Trust will invite them to attend any hearing by writing to both their last known home address and their registered address (the two will often be the same). The Trust will make a judgement, based on the evidence available, as to whether the allegations about the Practitioner’s conduct or capability are upheld. If the allegations are upheld, the Trust will take appropriate action, such as requesting the issue of an alert letter and referral to the professional regulatory body, referral to the police, or the Disclosure and Barring Service. If an excluded employee or an employee facing conduct or capability proceedings becomes ill, they will be subject to the Trust’s Attendance Management Policy. The sickness absence procedures take precedence over the conduct or capability procedures and the Trust will take reasonable steps to give the employee time to recover and attend any hearing. Where the employee's illness exceeds 4 weeks, they must be referred to the Occupational Health Service. The Occupational Health Service will advise the Trust on the expected duration of the illness and any consequences it may have for the conduct or capability process and will also be able to advise on the employee's capacity for future work. Should employment be terminated as a result of ill health, the investigation should still be taken to a conclusion and the Trust form a judgement as to whether the allegations are upheld. If, in exceptional circumstances, a hearing proceeds in the absence of the Practitioner, for reasons of ill-health, the trust will make alternative arrangements to engage the practitioner, including allowing written submissions.

CNTW(HR)02

11


NOTE: restrictions or exclusion can be implemented, revised or removed during any stage of the above process and will be determined by the case manager. Referral to a relevant regulator (e.g. GMC/GDC) can take place at any stage during the process.

Concern raised – Fact Find Completed

Executive Medical Director (EMD) consults

NCAS AND Director of Workforce and OD

EMD considers FORMAL or INFORMAL

resolution

CI completes investigation (4 weeks) and produces report for

CM (5 days) (subject to required extensions)

CM appoints Case Investigator (CI) and CM

prepares TOR

CM decides on how to progress informing

the Practitioner

FORMAL - EMD appoints Case Manager

(CM)

CM informs Practitioner of

Terms of Reference

INFORMAL – resolution via

agreed remedial action

CM consults NCAS

and Director of

Workforce & OD

CONDUCT

SECTION 4

HEALTH CONCERNS

SECTION 6

NO FURTHER

ACTION

CAPABILITY

SECTION 5

May co

ntact N

CA

S at any p

oin

t in th

e p

roce

ss

CM shares report with Practitioner allowing 10 working days

to submit comments on the factual accuracy of the report

REMEDIATION

EMD informs Practitioner of

concerns and investigation

0.16 HCAD Process

SECTIO

N 3

SECTION 2 - Supportive/Line Management Phase

CNTW(HR)02

12


1.1 All medical and dental employees should be aware that they are representatives of

the Trust and of the NHS as a whole. It is extremely important that individuals present a professional and caring image to patients, visitors and colleagues at all times and that their behaviour is consistent with the Trust’s values.

1.2 There are several sources of guidance on the expected standards of conduct within

CNTW NHS Trust, in addition to the standards set out in Good Medical Practice and Good Dental Practice, with which all employees should be familiar, including:

CNTW Trust Values (available on the Trust Intranet) CNTW Trust Staff induction process (available on the Trust Intranet) Revalidation and Appraisal policy for non-trainee Medical staff Standing Financial Instructions policy (available on the Trust Intranet).

1.3 As a general guide, all employees of the Trust are expected to: -

respect and protect the dignity of service users, carers and colleagues observe the Trust’s Single Equality Scheme observe Health and Safety policies and safe working practices at all times comply with requirements for professional registration and regulation including

abiding by the standards of professional behaviour set out by the respective profession

uphold appropriate standards of patient care including the safe delivery of care and behave ethically in the delivery of care

work effectively and constructively, individually and as part of a team respect the confidentiality of patients and colleagues demonstrate the highest standards of honesty and integrity attend work punctually and regularly obtain the appropriate approval for any absence carry out reasonable requests or instructions from managers be aware of, and adhere to, Trust policies and procedures

Duty to Inform Employer 1.4 Any change in personal circumstances, including changes of names or contact

details, should be notified to the line manager at the earliest opportunity. 1.5 An employee who accepts a police caution or is charged with, or convicted of, a

criminal offence (including receipt of a summons) must inform the Director of Workforce and OD, in writing, as soon as possible. Notification about a caution, criminal proceedings or a conviction (including bind-overs) will not necessarily lead to disciplinary action being taken. Following disclosure the Trust will determine what action, if any, will be taken after considering the facts of the case and the relevance of the charge or conviction to the job undertaken.

1.6 Where the requirement to drive is an essential part of their duties, staff must inform

SECTION ONE: STANDARDS OF BEHAVIOUR & CONDUCT

CNTW(HR)02

13


their line manager if charged with any driving offence. 1.7 Disciplinary Rules 1.8 This list, whilst giving some of the more common breaches of good practice or

rules and the level of disciplinary action which may be taken, is not exhaustive. As each case will be considered on its individual merits and in the light of individual circumstances, the actual response to a breach of the rules may be different.

1.9 Examples of general misconduct

Conviction for a criminal offence, the nature of which does not warrant dismissal

Poor time-keeping, including late arrival, early leaving and extended breaks when not part of authorised flexible working nor previously agreed with a line manager

Unauthorised absence or failure to comply with the Trust’s notification requirements for sickness absence, holiday booking, or any other type of absence

Failure to follow Trust policies and procedures, including health and safety policies, drug policies, equal opportunity policies, Trust Standing Orders and/or Standing Financial Instructions

Infringement of Health and Safety regulations e.g. failure to wear/use essential protective safety dress/equipment, violation of hygiene rules

Failure to follow reasonable instructions (subject to the employee’s right to refuse to follow an unlawful instruction or an instruction which breaches their professional code of conduct) including persistent or unreasonable failure to submit activity information on time

Misuse or lack of proper care of Trust property, including computers and other equipment

Misuse or abuse of Trust resources and facilities including telephones, computers, stationery and food

The above list is not exhaustive and it should be noted that depending on the nature/severity of the allegations could be classed as gross misconduct.

1.10 Examples of offences that might constitute gross misconduct and which may result

in dismissal. Please note that this list is neither exclusive nor exhaustive and each case will be considered on its own merits.

Theft, unauthorised or unlawful possession of property, including patients’ or colleagues’ property

Fraud, corruption or other type of dishonesty, such as receipt of bribes or falsification of time sheets or expenses

Violence, assault, threatening or menacing behaviour towards staff, patients or members of the public

III-treatment or mishandling of patients

Recklessness or negligence which threatens the health or safety of a patient, member of staff or member of the public (this may include an action or omission that compromises the safety of others)

CNTW(HR)02

14


Wilful damage to Trust property or equipment

Misuse or disclosure of confidential information to unauthorised persons (other than protected acts under the Public Interest (Disclosure) Act 1998 – please refer to the CNTW(O)29 - Confidentiality Policy - V02 - Nov 15

Breach of a professional code of conduct

Unauthorised use of a Trust vehicle or other Trust equipment or resources

Inappropriate use of Electronic Mail, Intranet or Internet facilities

Criminal offences that might affect a person’s suitability for their job or where there has been a failure to disclose convictions/proceedings

Incapability at work due to alcohol or illegal drugs (to be considered in line with the Trust’s Alcohol, Drug & Other Substance Misuse at Work Policy

Misappropriation and/or misuse of drugs (to be considered in line with the Trust’s Alcohol, Drug & Other Substance Misuse at Work Policy.

Contravention of the Trust’s Dignity at Work Policy

Verbal or physical abuse of patients, staff, visitors or members of the public including racial or sexual abuse or harassment or victimisation

Discrimination which contravenes Equal Opportunities legislation or the Trust's Equality and Diversity Policy

Abuse of position or power

Perpetration of a hoax, practical joke or other malicious act resulting in serious disruption to patients, services or staff

Sleeping on duty, except when authorised

Deliberately accessing internet sites containing pornographic, offensive or obscene materials

Failure to maintain required Professional Registration as per the Trust’s Policy on Profession Registration of Staff (available on the Trust Intranet).

A substantiated allegation of abuse of patient/patients as defined in the Trust’s Safeguarding Adults at Risk and/or the Safeguarding Children’s Policy (available on the Trust Intranet).

The concealment or destruction of evidence in disciplinary cases, including evidence of malpractice

Infringement of Health and Safety regulations e.g. smoking on Trust /grounds premises

Serious deliberate damage, misuse, abuse or lack of proper care of Trust equipment or facilities

Wilful omission or factual misrepresentation or provision of false information in application for employment

Private trading on Trust premises/using Trust resources

The above list is not exhaustive.

CNTW(HR)02

15


2.0 This supportive/line management phase is to address minor concerns raised within the local team.

2.1 This phase is not mandatory, and based on the presenting complaint/incident,

the designated manager can initiate the investigative process of this policy (Section 3) without carrying out this phase.

2.2 Appendix 2 details the actions required along with a process flowchart, form

and outcomes

2.3 Workforce advice, along with advice from NCAS can be sought at any time during this phase

2.4 This is not a prescriptive process, but written to serve as guidance for

progression through a supportive phase, before formal investigation, if that is eventually deemed necessary. This should be done in conjunction with Workforce Advice. This policy acknowledges that the titles of medical managers change from time to time. In order to avoid confusion, the term ‘responsible manager’ is used throughout, and refers to the first level of line management, in place for particular individual doctors.

2.5 If you have a concern or one has been reported to you about a medical

colleague then you should discuss this with your line manager or the line manager of the person that the concern has been raised. See template for raising concern at the end of this section.

2.6 It may be appropriate at this stage for the line manager to discuss the concern

with the Deputy Medical Director/Responsible Officer for the organisation. Medical Line Managers should also be aware that they will be expected to generate anonymised numbers of doctors that have been managed through the supportive phase, on an annual basis. They will also be expected to give assurance that actions plans have been generated. It should be noted that the names of individuals or details of actions plans are not to be disclosed.

2.7 First actions of Responsible Manager (or designated line manager):

If you receive a complaint or concerns are raised with you the first step is to ‘establish the immediate facts’ surrounding the complaint. This can include any documentary records such as timesheets/ written statements from the member of staff who raised concern and any other witnesses. At this stage, you are only seeking information that is readily available i.e. using collation of information, triangulation, or in certain cases fact finding.

2.8 Important: There is no need at this stage to be inviting people to a formal

meeting as this would be part of any subsequent investigation process if needed. You may want to inform the individual who the received complaint is against,

SECTION TWO: HANDLING CONCERNS – SUPPORTIVE/LINE MANAGEMENT PHASE

CNTW(HR)02

16


advising that you are making them aware of the complaint as part of this process. Do this sensitively and reconfirm that you are establishing the facts and no formal process has been entered into at this time. Assure the individual you will keep them informed and the matter will be progressed at pace.

2.9 There may be instances, such as fraud, where informing the individual may

hamper any subsequent investigation. In these types of situation informing the individual would be better after the preliminary stage and discussion with your line manager.

2.10 The purpose of this stage is to gather enough information to enable the

responsible manager and their line manager in turn (e.g. Group Medical Director) to assess the seriousness of the concern/complaint raised and help inform and rationalise whether this needs to be resolved through the Supportive/Line Management route or proceed to investigative stage of MHPS.

2.11 In the event of a Bullying and Harassment complaint against a doctor:

This will be exempt from the MHPS/Trust Handling Concerns process at this stage and the relevant Trust policy will be followed (Dignity at Work CNTW (HR) 04). If the concerns are founded then it may lead to an investigation under MHPS/Trust Handling Concerns policy and the investigation carried out under Dignity at work policy will be used as part of this process.

2.12 Support for the Practitioner while the facts are established:

Responsible managers must consider the emotional welfare of individuals throughout any fact find process and must not underestimate the impact this may have on an individual, so should be encouraged to seek assistance through the Occupational Health department. It may be worthwhile reminding individuals that support is also available from the BMA, MDU, Care First, Team Prevent etc.

2.13 What happens once the facts are established?

A. Action in the event that minor shortcomings are isolated following an initial fact find as detailed above

Remedial action by Responsible Manager: Minor shortcomings shall initially be dealt with informally. The practitioner’s Responsible Manager should discuss the shortcomings with a view to identifying the causes and offering help to the practitioner to rectify them. Such supportive actions will not in itself represent part of the disciplinary or capability procedure, although the fact and date that support was given, along with objectives and clear expectations should be recorded on a file note and retained on the practitioner’s personal file. Regular meetings should be set up between the practitioner and Responsible Manager, in order to monitor and review progress. Where improvement is evident, a further file note to be kept, copies of which can be given to the practitioner for the purposes of their appraisal, and the case can be closed.

CNTW(HR)02

17


Other possible examples of support/remedial action:

The Responsible Manager, in collaboration with the practitioner, may identify a number of additional support measures, or remedial actions to address minor shortcomings. These may include: occupational health, educational activities, behavioural coaching etc. (please see Glossary of Terms). An action plan can be used as a tool to enable the process to be supportive and engaging. The action plan should be time limited and regularly reviewed with implications for non-achievement.

File note In the case of minor infractions, the Line Manager may discuss with the practitioner the expected improvements and the timescales for this and should be followed up in writing/e-mail. This is useful in cases where the practitioner is repeatedly late for work for example but does not have a satisfactory reason for doing so. Further advice and guidance on identifying and managing minor shortcomings is available from Human Resources. This is not a formal disciplinary sanction.

Situations in which ill health was a contributing factor In situations where a person’s ill health is a significant contributory factor to their conduct or performance then separate procedures for dealing with ill health and capability should be used. This would include obtaining support from HR and Occupational Health. Notes of referrals, recommendations for support and support implemented to be kept and regularly monitored.

B. Action in the event that serious shortcomings are isolated

Appointment of a Case Investigator

The responsible manager will discuss their findings with their line manager and the GMD, who in turn will discuss with the relevant parties as set out in the Trust’s Handling Concerns Policy. If they consider a formal investigation is needed, the Executive Medical Director, in discussion with the Chief Executive and the Director of Workforce & OD, shall decide on the appointment of a case manager and in turn a case investigator. When a Case Investigator is appointed, the terms of reference for the investigation should be determined by the Case Manager, usually in consultation with the Director of Workforce & OD and/or Capsticks HR Advisory service.

2.14 Next steps:

Once remedial actions have been taken, where appropriate, it is suggested that the responsible manager sets up a schedule for the doctor in question, of future meetings and evidence of improvements. Once this is confirmed with subsequent meetings, a file note can be made, and the process concluded.

Paperwork, glossary and flow chart are in Appendix 2.

CNTW(HR)02

18


3.0 Identifying if there is a problem 3.1 On receiving information from any source the Executive Medical Director,

following discussion with the Executive Director of Workforce and OD, will decide how to proceed in order to reach a decision. They may initially require further information, may involve delegation of the case to a Deputy Medical Director or Group Medical Director (as appropriate in accordance with this Policy) and may involve commissioning of a brief preliminary enquiry in order to determine whether:

A). there is no substance to the allegations and therefore no further action is

necessary; or

b). the case is one which can be dealt with on an informal basis; or

c). the case is potentially a “serious” concern where a more formal route needs to be followed.

3.2 Initially the Executive Medical Director will need to discuss this with the

National Clinical Assessment Service (NCAS), and as appropriate may need to contact the General Medical Council (GMC), the Practitioner’s Medical Royal College and/or the Trust’s legal advisors for advice. The BMA may also be contacted for advice is appropriate.

3.3 The Executive Medical Director should explore the potential problem with

NCAS and consider different ways of tackling it, possibly recognising the problem as being more to do with work systems than doctor performance, or they may see a wider problem needing the involvement of an outside body other than NCAS.

3.4 Concerns about a Practitioner can come to light in a wide variety of ways, for

example:

Information from the police or HM Coroner From other NHS professionals, health care managers, students or non-

clinical staff Review of performance against job plans, annual appraisal, revalidation Monitoring of data on performance and quality of care Clinical governance, clinical audit and other quality improvement activities Complaints about care by patients or relatives of patients Information from the regulatory bodies Litigation following allegations of negligence Court judgements

SECTION THREE: HANDLING CONCERNS - DETERMINATION AND INVESTIGATION OF

ALLEGATIONS

CNTW(HR)02

19


3.5 For doctors and dentists in training, if concerns arise around performance that

consistently falls below the required standard, this should be reported to the Group Medical Director who will assess if the matter is potentially related to their training, in discussion with the relevant Director of Postgraduate Medical Education. Following liaison with the relevant educational personnel to resolve the matter, if problems remain then it will be for the Director of Postgraduate Medical Education to refer to the Dean of Postgraduate Medical Studies at Health Education North East (HENE) for action. If patient safety is a significant concern then this must also be escalated to the Executive Medical Director.

3.6 In all cases, the individual concerned will be informed that a concern has been

raised and will be asked for their initial response to the concerns raised in order to inform the decision about next steps. This will normally be at a meeting (other than in exceptional cases where it will be notified in writing instead) and will set out the way in which the substance of the complaint or allegation is being established. It will not normally be necessary for the individual to be represented at this stage but they will be offered this opportunity; this will however need to be consistent with the aim of determining the nature of the issue as speedily as possible.

3.7 Case Management of a potentially serious concern 3.8 The Case Manager must be appointed in line with the ‘Roles and

Responsibilities’ covered in paragraph 0.11. 3.9 Once appointed, the Case Manager should not automatically attribute an

incident to the actions, failings or acts of an individual alone. Root cause analyses of adverse events should be conducted as these frequently show that causes are more broadly based and can be attributed to systems or organisational failures, or demonstrate that they are untoward outcomes which could not have been predicted and are not the result of any individual or system failure. Root cause analysis training can be made available if required. Each of these scenarios will require appropriate investigation and remedial actions. NHS England facilitates the development of an open and fair culture, which encourages doctors, dentists and other NHS staff to report adverse incidents and other near misses and the Case Manager should consider contacting NHS England for advice about systems or organisational failures.

3.10 Having discussed the case with NCAS the Executive Medical Director must

decide whether an informal approach can be taken to address the problem, and whether further preliminary investigation is needed. Where an informal route is chosen NCAS should still be involved until the problem is resolved.

3.11 Appointing a Case Investigator 3.12 Where it is decided that a more formal route needs to be followed (perhaps

leading to conduct or capability proceedings) the Executive Medical Director must, after discussion with the Director of Workforce and OD appoint an appropriately trained person as Case Investigator. The Case Investigator will

CNTW(HR)02

20


be of an appropriate seniority in relation to the grade of doctor or dentist involved in the allegation. The Case Investigator may come from another department and will receive HR support.

3.13 The Investigation 3.14 The Case Investigator does not make the decision on what action should be

taken nor whether the employee should be excluded from work and may not be a member of any disciplinary or appeal panel relating to the case.

3.15 Prior to the investigation commencing, the Practitioner concerned must be

informed in writing by the Case Manager and seen in person, with an appropriate companion where requested, as soon as it has been decided that an investigation is to be undertaken. The Practitioner must be advised of the name of the Case Investigator and made aware of the specific allegations or concerns that have been raised. The Practitioner must be given the opportunity to see any correspondence, including Terms of Reference, relating to the case together with a list of the people that the Case Investigator will interview. This information must be detailed within the Terms of Reference set out by the Case Manager. As part of the investigation process, the Practitioner must be afforded the opportunity of a meeting to put their view of events to the Case Investigator and be given the opportunity to be accompanied as per paragraph 0.4.

3.16 The Case Investigator has discretion on how the investigation is carried out.

The purpose of the investigation is to investigate, in an objective, unbiased and impartial way, the complaints identified by the Case Manager, in the Terms of Reference, to discover if there is a case of a capability issue and/or misconduct. The Case Investigator gathers relevant information by interviewing individuals and reading and gathering documents. The testimony of the interviewees is, at this stage, not tested by the practitioner or his or her representative. In many cases the Case Investigator will not be able to resolve disputed issues of fact. He or she can only record the conflicting accounts of the interviewees. Where a practitioner admits that he or she has behaved in a certain way or where there is otherwise undisputed evidence, the case investigator can more readily make findings of fact. Investigations are not intended simply to secure evidence against the Practitioner as information gathered in the course of an investigation may clearly exonerate the Practitioner or provide a sound basis for effective resolution of the matter.

3.17 If during the course of the investigation it transpires that the case involves more

complex clinical issues than first anticipated, the Case Manager will arrange for a Practitioner in the same specialty and same grade from another NHS body to assist as a Clinical Advisor.

3.18 The Case Investigator should complete the investigation within 4 weeks of

appointment and submit their report to the Case Manager within 5 days of having concluded the investigation. Should these timescales appear as if they may not be met the practitioner must informed at the earliest opportunity with a rationale and revised timescale. The report of the investigation should give the

CNTW(HR)02

21


Case Manager sufficient information to make a decision as to whether:

There is a case of misconduct that should be put to a Conduct Panel There are concerns about the Practitioner's health that should be

considered by the Trust’s Occupational Health Service There are concerns about the Practitioner's performance that should be

further explored by the National Clinical Assessment Service

Further local management may be the outcome of this discussion but it needs to be explored with NCAS in the first instance

Restrictions on practice or exclusion from work should be considered There are serious concerns that should be referred to the General Medical

Council or General Dental Council There are intractable problems and the matter should be put before a

Capability Panel No further action is needed The Case Manager has discretion in the formulation of any matters which are to go before a Panel, provided that they are based on the Case Investigator’s report and the accompanying materials in appendices of the report, such as the records of witness interviews and statements.

The procedure before any subsequent Panel enables the practitioner to test the evidence in support of the complaint and any findings of fact by the Case Investigator.

3.19 Involvement of the National Clinical Assessment Service following local

investigation 3.20 Medical under-performance can be due to a range of problems including health

issues, difficulties in the work environment, behaviour or a lack of clinical capability. These may occur in isolation or in a combination. The NCAS’s processes are aimed at addressing all of these, particularly where local action has not been able to take matters forward successfully. The National Clinical Assessment Service’s methods of working therefore assume commitment by all parties to engage constructively in a referral to the National Clinical Assessment Service. For example, its assessors work to formal terms of reference, decided on after input from the doctor or dentist and the referring body.

3.21 The focus of NCAS’s work is therefore likely to involve performance difficulties

which are serious and/or repetitive. That means:

Performance falling well short of what doctors and dentists could be expected to

do in similar circumstances and which, if repeated, would put patients seriously

at risk;

Alternatively or additionally, problems that is ongoing or (depending on severity)

has been encountered on at least two occasions.

In cases where it becomes clear that the matters at issue focus on fraud,

CNTW(HR)02

22


specific patient complaints or organisational governance, their further management may warrant a different local process. NCAS may advise on this.

3.22 Where the Trust is considering excluding a doctor or dentist (whether or not his

or her performance is under discussion with NCAS), the Trust will inform NCAS of this at an early stage, so that alternatives to exclusion are considered. Procedures for exclusion are covered in Section Seven of this Policy. It is particularly desirable to find an alternative when NCAS is likely to be involved, because it is much more difficult to assess a doctor who is excluded from practice than one who is working.

3.23 A Practitioner undergoing assessment by NCAS must cooperate with any

request to give an undertaking not to practice in the NHS or private sector other than their main place of NHS employment until the NCAS assessment is complete. (Under circular HSC 2002/011, Annex 1, paragraph 3, "A doctor undergoing assessment by the National Clinical Assessment Service must give a binding undertaking not to practice in the National Health Service or private sector other than in their main place of National Health Service employment until the assessment process is complete”).

3.24 Failure to co-operate with a referral to NCAS may be seen as evidence of a

lack of willingness on the part of the doctor or dentist to work with the employer on resolving performance difficulties. If the Practitioner chooses not to co-operate with such a referral, that may limit the options open to the parties and may necessitate disciplinary action and consideration of referral to the General Medical Council or General Dental Council.

3.25 Decision of the Case Manager 3.26 Once the investigation report is completed it will be provided to the Case

Manager who will then decide which of those courses of action set out in paragraph 3.18 above needs to be taken. The Case Manager should discuss the report with the Director of Workforce and OD, as well as with NCAS if the NCAS case remains open at that stage.

3.27 The Case Manager will write to the practitioner enclosing a copy of the

investigation report together with the statements and other evidence gathered in the course of the investigation. The letter will set out the Case Manager’s decision and the reasons for it.

3.28 Inevitably, some cases will involve both Conduct and Capability issues. These

cases are likely to be complex and difficult to manage. Therefore, where a case covers more than one category of problem, they will usually be combined and considered under a Capability hearing. However, there may be occasions where it is necessary to pursue a Conduct issue and a Capability issue separately. In these difficult cases, the Case Manager, in consultation with NCAS, the Director of Workforce and OD and, if necessary, the Trust’s own legal advisers, will decide the most appropriate course of action.

3.29 For all investigations, when the investigation report has been received, the

CNTW(HR)02

23


Case Manager will provide the factual parts of the report to the practitioner for comment. The practitioner has 14 working days in which to comment on the report unless an alternative timescale is agreed in writing with the Case Manager.

3.30 If the practitioner (or representative) fails to provide his or her comments within

the 14 working day time limit (or such other time limit as may be agreed), the Case Investigator will finalise the report, recording the fact that it has not been possible to obtain the practitioner’s comment. The Case Manager shall then confirm the final report in writing to the practitioner.

3.31 If a practitioner considers that the case has been wrongly classified he or she

(or his/her representative) is entitled to make submissions to the Designated Member. The Practitioner is also entitled to use the Trust’s grievance procedure if they consider that the case has been incorrectly classified.

CNTW(HR)02

24


4.0 Introduction 4.1 This section should only be followed once a formal investigation process has

concluded and the Case Manager has determined the concern to be one of conduct.

4.2 Any concerns relating to practitioners in training grades must be discussed with the relevant educational supervisor and college or clinical tutor, together with the Dean of Postgraduate Medical Studies from the outset.

4.3 Informal resolution following formal investigation 4.4 For minor conduct issues that the investigation process has identified relevant

mitigation, the Case Manager may consider these matters to be dealt with informally with their local clinical manager.

4.5 An action plan may be appropriate to ensure adequate support is in place for the Practitioner. Or, should the matter relate to the Practitioner’s behavior towards a colleague, mediation or a facilitated discussion may be considered as an option. Equally the Practitioner may be asked to provide an apology to the party or parties involved.

4.6 Formal Disciplinary Hearing 4.7 Where the Case Manager concludes that there is evidence to support the

allegation(s), and the Case Manager believes that a Disciplinary Hearing is required, the Case Manager will write to the Practitioner including the following information:

The employee will be informed in writing a minimum of 10 working days in

advance of any hearing (unless mutually agreed otherwise) of the purpose of the meeting, namely that a review of all available information has resulted in concerns regarding conduct which must be addressed formally.

The date, time and venue of the hearing and membership of the panel (Note:

the person administering the process must ensure that a suitable venue is chosen, with an appropriate number of rooms to hold all parties in waiting).

The specific nature of any allegation(s) and/or details of the alleged offences. It

is ultimately for the Case Manager in his discretion to decide the formulation of matters to go before a disciplinary panel, based on the Case Investigator’s report and the accompanying materials. The Case Manager is not bound to follow the Case Investigator’s findings.

Notification of the employee’s right to representation (as per paragraph 0.3).

That in support of their case, either party may request witnesses to attend, or they may choose to present a written and signed witness statement in their absence.

SECTION FOUR: PROCEDURE FOR DEALING WITH ISSUES OF CONDUCT

CNTW(HR)02

25


The level of disciplinary sanction that is available to the Panel.

Arrangements for the exchange of any documents that will be produced at the meeting (exchange to take place at least 5 working days before the formal meeting).

Circumstances where evidence is not able to be sent out will be rare and may include information that is covered by Data Protection Act 1998 or CCTV footage, unless appropriate permission has been given to share this data in advance. In these cases the Chair of the Disciplinary Hearing is responsible for ensuring the principles of natural justice are observed.

Consequences should the practitioner be unable to attend.

4.8 Where the alleged misconduct relates to matters of a professional nature or where the investigation identifies issues of professional conduct, the Case Investigator must obtain appropriate independent professional advice. Similarly where a case involving issues of professional conduct proceeds to a hearing under the procedures detailed in point 4.14 below, the panel must include a member who is medically qualified (in the case of doctors) or dentally qualified (in the case of dentists) and who is not currently employed by the Trust. The Trust will discuss the selection of the medical or dental panel member with the Chair, or a delegated member, of the Local Negotiating Committee.

4.9 A manager who has had no involvement in any investigation relating to the

case will Chair the disciplinary hearing and will be supported by a member of the HR team. The scheme of delegated authority to take disciplinary action is shown in Appendix 3.

4.10 Where the employee or representative is unable to attend a hearing on the

date identified, and then an alternative date within 10 working days will be set which is suitable for all parties.

4.11 Where an employee fails to attend a disciplinary hearing without prior

notification, the Trust may offer a further date for the hearing depending on the circumstances. A failure to attend a hearing could result in the hearing proceeding in the absence of the Practitioner with the possibility of disciplinary action being taken against the Practitioner in his or her absence.

4.12 The following parties will be present throughout the hearing:

The manager hearing the case

HR advisor

Note taker

The employee

The employee’s representative or workplace colleague

The Case Manager

In some cases an adviser such as a clinical or other specialist may accompany the Chair, although in every case any decision to take disciplinary action is the responsibility of the manager hearing the case

CNTW(HR)02

26


4.13 Witnesses, including the Case Investigator (if required), will attend only for the

period of time when they are being asked to present their evidence and respond to questions. In some situations it may be considered appropriate for witnesses to be accompanied at the hearing. These companions would have no right to address or participate in the hearing.

4.14 Procedure at Disciplinary Hearing 4.15 A formal hearing convened under this policy will follow the procedure outlined

below: -

The Chair of the Disciplinary Hearing (or Chair of the Panel in the case of appeal hearings) carries out introductions, identifying the role of each person, and explains the format of the hearing

The Case Manager presenting the case states the management case and calls any witnesses (if relevant)

The employee or his/her representative and the manager (or members of the panel) hearing the case may question any witnesses called and/or the case manager presenting the case

The Case Manager presenting the case may re-examine the witnesses on any matters referred to in their questions by the manager (or members of the panel) hearing the case or by the employee or his/her representative

The employee or his/her representative states his/her case in response and calls any witnesses (if relevant)

The Case Manager presenting the case and the manager (or members of the panel) hearing the case may question any witnesses called and/or the employee/representative presenting the case

The employee or his/her representative may re-examine the witnesses on any matters referred to in their examination by the case manager presenting the case or the manager (or members of the panel) hearing the case

The Case Manager presenting the case sums up

The employee or his/her representative sums up last

The manager (or members of the panel) hearing the case may question any party to clarify matters which remain unclear at this point. They may also ask questions for the purpose of clarification during the proceedings if necessary at any time

The manager hearing the case (or Chairman of the appeal panel) may at his/her discretion defer a decision and adjourn the hearing to allow either party to produce further evidence if so requested. If this is not required:

CNTW(HR)02

27


The parties withdraw while the manager (or panel) hearing the case considers the evidence and arrives at a decision

The manager hearing the case (or Chairman of the appeal panel) may re-call the parties to give the outcome of the hearing or he/she may inform the parties (before they adjourn or when re-called) that the decision will be notified at a later date. In either case, the decision is confirmed in writing, within 7 working days

4.16 Disciplinary Sanctions

4.17 After hearing evidence and mitigation from both sides, the level of any disciplinary action to be taken, if any, is a matter for the Chair of the Disciplinary Hearing to determine. No employee will be dismissed for the first disciplinary offence, unless it is a case of gross misconduct.

The disciplinary sanctions:

First Written Warning – This will be applied when conduct does not meet acceptable standards. This will be in writing (issued within 5 working days of the hearing) and will set out the nature of the misconduct, the reasons for applying a first written warning, the change in behaviour required and the right of appeal. A First Written Warning will remain effective for TWELVE months from the date of the hearing, unless an appeal is successful in which case it will be immediately cancelled, after which it will be spent. The warning will also inform the employee that further disciplinary action, up to and including dismissal, may be taken if there is further misconduct during the period in which the warning is effective.

Final Written Warning - This will be applied if the misconduct is considered to be serious or if there is further misconduct during the period in which a First Written Warning is effective. This will be in writing (issued within 5 working days of the hearing) and will set out the nature of the misconduct, the reasons for applying a final written warning, the change in behaviour required and the right of appeal. A Final Written Warning will normally remain effective for twenty four months from the date of the hearing, unless an appeal is successful in which case it will be immediately cancelled, after which it will be spent. The warning will also inform the employee that further disciplinary action, up to and including dismissal, may be taken if there is further misconduct during the period in which the warning is effective.

Dismissal with Notice - This will be applied if there is further misconduct during the period in which a Final Written Warning is effective or if there is further serious misconduct during the period in which a First Written Warning is effective. The employee will be provided in writing (issued within 5 working days of the hearing) with the reasons for dismissal, the date on which the employment will be terminated and the right of appeal.

CNTW(HR)02

28


Summary Dismissal - Summary dismissal (or dismissal without notice) will only be applied in cases of gross misconduct. Examples of gross misconduct are set out in Paragraphs 1.7 to 1.10. The employee will be provided with written reasons for summary dismissal, the date on which the employment was terminated and the right of appeal. The letter confirming summary dismissal will be issued within 5 working days of the hearing.

4.18 Appeals

4.19 Appeals against dismissal will be heard in accordance with the procedure set out in paragraph 4.15 above, however during the appeal process the member of staff who has raised their appeal shall present first, with the management case responding to their appeal. Appeals should be in writing and must clearly set out the reasons for the appeal. Appeals should be lodged within 10 working days of the date of the letter confirming the disciplinary sanction or dismissal.

4.20 Appeals against both First and Final Written Warnings will be to an appropriate

senior manager. This may be a manager of the same or higher level as the manager who issued the disciplinary sanction except where the decision was given by the Chief Executive or a Board Member when the appeal will be heard by at least one Board member and HR Advisory service.

4.21 Appeals against dismissal will be heard in accordance with the Scheme of

Delegation in Appendix 3 and a representative from HR Advisory service. In exceptional circumstances due to the complexity/sensitive nature of the case it may be appropriate for an independent advisor from outside of the Trust to sit on the panel. The Management Case will be presented by the manager responsible for issuing the sanction at the previous hearing. Statements of case from both parties should be submitted to the Chair no later than 5 working days prior to the hearing date.

4.22 The practitioner will be provided in writing with the reasons for the decision(s)

taken at the Appeal hearing (letter issued within 5 working days). 4.23 Referrals to other relevant bodies 4.24 The Chair of the Panel is responsible for ensuring all appropriate referrals to

regulatory bodies are made following the conclusion of the Disciplinary Process and that any appropriate actions required are undertaken.

4.25 The Chair of the Panel is responsible for informing the Trust’s Responsible

Officer of the outcome of the Disciplinary process.

CNTW(HR)02

29


5.0 Introduction and General Principles 5.1 There will be occasions where the Trust considers that there has been a clear

failure by an individual to deliver an adequate standard of care, or standard of management, through lack of knowledge, ability or consistently poor performance. These are described as capability issues.

5.2 Concerns about the capability of a doctor or dentist may arise from a single

incident or a series of events, reports or poor clinical outcomes. Advice from the National Clinical Assessment Service (NCAS) will help the Trust to come to a decision on whether the matter raises questions about the Practitioner’s capability as an individual (health problems, behavioural difficulties or lack of clinical competence) or whether there are other matters that need to be addressed. If the concerns about capability cannot be resolved routinely by management, the matter must be referred to NCAS before the matter can be considered by a capability Panel (unless the Practitioner refuses to have his or her case referred).

5.3 Matters which fall under the Trust’s capability procedures include:

Out of date clinical practice Inappropriate clinical practice arising from a lack of knowledge or skills that

puts patients at risk Incompetent clinical practice Inability to communicate effectively with colleagues and/or patients Inappropriate delegation of clinical responsibility Inadequate supervision of delegated clinical tasks Ineffective clinical team working skills

NB: This is not an exhaustive list. 5.4 Wherever possible, the Trust will aim to resolve issues of capability (including

clinical competence and health) through ongoing assessment and support. Early identification of problems is essential to reduce the risk of serious harm to patients. Reference should be made to the Remediation section of this policy for guidance on how to support medical/dental staff to achieve the required standards of performance. The National Clinical Assessment Service will be consulted for advice to support the remediation of a doctor or dentist.

5.5 How to proceed where conduct and capability issues are involved 5.6 It is inevitable that some cases will cover conduct and capability issues. It is

recognised that these cases can be complex and difficult to manage. If a case covers more than one category of problem, they should usually be combined under a capability hearing although there may be occasions where it is necessary to pursue a conduct issue separately. It is for the Trust to decide upon the most appropriate way forward having consulted the National Clinical

SECTION FIVE: PROCEDURE FOR DEALING WITH ISSUES OF CAPABILITY

CNTW(HR)02

30


Assessment Service and their employment law specialist. The Practitioner is also entitled to use the Trust’s grievance procedure if they consider that the case has been incorrectly classified. Alternatively or in addition he or she may make representations to the Designated Member.

5.7 The procedures set out below are designed to cover issues where as a result

of the formal investigation, it has been identified by the Case Manager that a doctor’s or dentist’s capability to practice is in question. The Case Manager will consider the scope for resolving the issue through counselling or retraining, following the procedure and guidance set out in the Remediation section of this policy, taking advice from the National Clinical Assessment Service.

5.8 Capability may be affected by ill health and this will be considered in any

investigation. Arrangements for handling concerns about a Practitioner’s health are described in Section Six of this procedure.

5.9 Capability Procedure The pre-hearing process 5.10 When a report of the Trust investigation has been received, the Case Manager

must give the Practitioner the opportunity to comment in writing on the factual content of the report produced by the Case Investigator. Comments in writing from the Practitioner, including any mitigation, must be submitted to the Case Manager within 14 working days of the date of receipt of the request for comments. In exceptional circumstances, for example in complex cases or due to annual leave, the deadline for comments from the Practitioner should be extended.

5.11 The Case Manager should decide what further action is necessary, taking into

account the findings of the report, any comments that the Practitioner has made and the advice of the NCAS. The Case Manager will need to consider urgently:

Whether action under Section seven of the procedure is necessary to exclude

the Practitioner; or To place temporary restrictions on their clinical duties

5.12 The Case Manager will also need to consider with the Director of Workforce

and OD whether the issues of capability can be resolved through local action following the stages set out on the Remediation Section of this policy (such as retraining, counselling, performance review). If this action is not practicable for any reason the matter must be referred to the National Clinical Assessment Service for it to consider whether an assessment should be carried out and to provide assistance in drawing up an action plan. The Case Manager will inform the Practitioner concerned of the decision immediately and normally within 14 working days of receiving the Practitioner’s comments.

5.13 The National Clinical Assessment Service will assist the Trust in drawing up an

action plan designed to enable the Practitioner to remedy any lack of capability

CNTW(HR)02

31


that has been identified during the assessment. The Trust must facilitate the agreed action plan (which has to be agreed by the Trust and the Practitioner before it can be actioned). There may be occasions when a case has been considered by the National Clinical Assessment Service, 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 Case Manager must make a decision, based upon the completed investigation report and informed by the National Clinical Assessment Service advice, whether the case should be determined under the capability procedure. If so, a capability hearing will be necessary.

5.14 If the Practitioner does not agree to the case being referred to the National

Clinical Assessment Service, or to remediation, a capability hearing will normally be necessary.

5.15 If a capability hearing is to be held, the following procedure will be followed

before the hearing:

The Case Manager must notify the Practitioner in writing of the decision to arrange a capability hearing. This notification should be made at least 28 working days before the hearing and include details of the allegations and the arrangements for proceeding including the Practitioner’s rights to be accompanied (as stipulated in Section 0.4) and copies of any documentation and/or evidence that will be made available to the capability Panel. The practitioner will be given every reasonable opportunity to present his or her case, although the hearing should not be conducted in a legalistic or excessively formal manner. The practitioner may be represented in the process by a friend, partner or spouse, colleague, or a representative who may be from or retained by a trade union or defence organisation. Such a representative may be legally qualified but they will not be representing the practitioner formally in a legal capacity. The representative will be entitled to present a case on behalf of the practitioner, address the panel and question the management case and any witness evidence.

All parties must exchange any documentation, including witness statements, on which they wish to rely in the proceedings no later than 14 working days before the hearing. In the event of late evidence being presented, the Trust will consider whether a new date should be set for the hearing.

Should either party request a postponement to the hearing the Case Manager is responsible for ensuring that a reasonable response is made and that time extensions to the process are kept to a minimum. The Trust retains the right, after a reasonable period (not less than 42 working days), to proceed with the hearing in the Practitioner’s absence, although the Trust will act reasonably in deciding to do so, taking into account any comments made by the Practitioner.

Should the Practitioner’s ill health prevent the hearing taking place, the Trust

will implement its usual absence procedures and involve the Occupational Health Department as necessary.

CNTW(HR)02

32


Witnesses who have made written statements at the investigation stage may,

but will not necessarily, be required to attend the capability hearing. Following representations from either side contesting a witness statement which is to be relied upon in the hearing, the Chairman will invite the witness to attend. The Chairman cannot require anyone other than an employee to attend. However, if evidence is contested and the witness is unable or unwilling to attend, the Panel will reduce the weight given to the evidence as there will not be the opportunity to challenge it properly. A final list of witnesses to be called must be given to both parties not less than two working days in advance of the hearing

If witnesses who are required to attend the hearing choose to be accompanied,

the accompanying person cannot participate in the hearing. 5.16 The hearing framework 5.17 The capability hearing Panel will normally be chaired by the Chief Executive of

the Trust but can be chaired by an Executive Director of the Trust. The Panel will also comprise another member of the Trust Board, or a member of senior staff appointed by the Board for the purpose of the hearing and one member who is a medical or dental Practitioner but who is not employed by the Trust. The Trust will agree the external medical or dental member with the Chair of the Medical Staff Committee relevant to where the Practitioner normally carries out his or her duties for the Trust. In the case of clinical academics a further Panel member may be appointed in accordance with any protocol agreed between the Trust and the University.

5.18 As far as is reasonably possible or practical no member of the Panel or

advisers to the Panel should have been previously involved in carrying out the investigation.

5.19 The Panel will be advised by:

A senior member of HR Staff A senior clinician from the same or similar clinical specialty as the

Practitioner concerned, but from another NHS employer. (This individual should be able to provide advice on the typical standard of competence required of the grade of doctor in question. If they are for any reason unable to do so, another doctor from the same grade as the Practitioner but from another NHS employer should be asked to provide advice)

A representative from the relevant University if the Practitioner is a clinical academic

5.20 The Trust will decide the membership of the Panel. The Practitioner may raise

an objection to the choice of any Panel member within 7 working days of notification. The Trust will review the situation and take reasonable measures to ensure that the membership of the Panel is acceptable to the Practitioner. It may be necessary to postpone the hearing while this matter is resolved. The Trust must provide the Practitioner with the reasons for reaching its decision in writing before the hearing can take place.

CNTW(HR)02

33


5.21 Representation at capability hearings 5.22 The Practitioner will be given every reasonable opportunity to present his or her

case, although the hearing should not be conducted in a legalistic or excessively formal manner.

5.23 The Practitioner may be represented in the process as stipulated in Section 0.3 5.24 Conduct of the capability hearing 5.25 The hearing should be conducted as follows:

The Panel and its advisers (see paragraph 5.17 of this section), the Practitioner, his or her representative and the Case Manager will be present at all times during the hearing. Witnesses will be admitted only to give their evidence and answer questions and will then retire

The Chairman of the Panel will be responsible for the proper conduct of the proceedings The Chairman shall introduce all persons present and announce which witnesses are available to attend the hearing

The procedure for dealing with any witnesses attending the hearing shall be the same and shall reflect the following:

o The witness to confirm any written statement and give any supplementary evidence

o The side calling the witness can question the witness o The other side can then question the witness o The Panel may question the witness o The side which called the witness may seek to clarify any points which

have arisen during questioning but may not at this point raise new evidence.

5.26 The order of presentation shall be:

The Case Manager presents the management case including calling any witnesses. The above procedure for dealing with witnesses shall be undertaken for each witness in turn, at the end of which each witness shall be released from giving their evidence and shall then leave the hearing

The Chairman shall invite the Case Manager to clarify any matters arising from the management case on which the Panel requires further clarification

The Practitioner and/or their representative shall present the Practitioner’s case, calling any witnesses. The above procedure for dealing with witnesses shall be undertaken for each witness in turn, at the end of which each witness shall be released from giving their evidence and shall then leave the hearing

The Chairman shall invite the Practitioner and/or representative to clarify any matters arising from the Practitioner’s case on which the Panel requires further clarification

The Chairman shall invite the Case Manager to make a brief closing statement summarising the key points of the case

The Chairman shall invite the Practitioner and/or representative to make a brief closing statement summarising the key points of the Practitioner’s case. Where

CNTW(HR)02

34


appropriate this statement may also introduce any grounds for mitigation The Panel shall then retire to consider its decision

5.27 Decisions 5.28 Decisions shall be made by the Panel by way of simple majority using the civil

standard (balance of probabilities) to assess the available evidence. First, the Panel shall determine if the Allegation presented is found proved. If so, second the Panel shall determine what action, if any, to take. The Panel will have the power to make a range of decisions including the following, and shall give reasons for all decisions taken:

No action required

First Written Warning that there must be an improvement in clinical

performance within a specified time scale with a statement of what is required and how it might be achieved (stays on the employees’ record for 12 months from the date of the hearing)

Final Written Warning that there must be an improvement in clinical

performance within a specified time scale with a statement of what is required and how it might be achieved (stays on the employee’s record for 12 months from the date of the hearing)

Termination of contract.

5.29 It is also reasonable for the Panel to make comments and recommendations on

issues other than the competence of the Practitioner, where these issues are relevant to the case. For example, there may be matters around the systems and procedures operated by the employer that the Panel wishes to comment upon.

5.30 A record of oral agreements and written warnings should be kept on the

Practitioner’s personnel file but these will be removed following the specified period.

5.31 The decision of the Panel shall be communicated to the parties as soon as

possible and normally within 5 working days of the hearing. Because of the complexities of the issues under deliberation and the need for detailed consideration, the parties should not necessarily expect a decision on the day of the hearing.

5.32 The decision must be confirmed in writing to the Practitioner. This notification

must include reasons for the decision, clarification of the Practitioner’s right of appeal and notification of any intent to make a referral to the GMC/GDC or any other external/professional body.

5.33 Appeals in Capability Cases 5.34 The appeals procedure provides a mechanism for Practitioners who disagree

CNTW(HR)02

35


with the outcome of a decision to have an opportunity for the case to be reviewed. The appeal Panel will need to establish whether the Trust’s procedures have been adhered to and that the Panel in arriving at their decision acted fairly and reasonably based on:

A fair and thorough investigation of the issue Sufficient evidence arising from the investigation or assessment on which to

base the decision Whether in the circumstances the decision was fair and reasonable, and

commensurate with the evidence heard

It can also hear new evidence submitted by the Practitioner and consider whether it might have significantly altered the decision of the original hearing. The Appeal Panel, however, should not rehear the case in its entirety (but in certain circumstances it may order a new hearing see paragraph 5.37).

5.35 A dismissed Practitioner will potentially be able to take their case to an

Employment Tribunal where the reasonableness of the Trust’s actions can be tested.

5.36 The Appeal Process 5.37 The predominant purpose of the appeal is to ensure that a fair hearing was

given to the original case and a fair and reasonable decision reached by the hearing Panel. The Appeal Panel has the power to confirm or vary the decision made at the capability hearing, or order that the case is reheard. Where it is clear in the course of the appeal hearing that the proper procedures have not been followed and the Appeal Panel determines that the case needs to be fully re-heard, the Chairman of the Panel shall have the power to instruct a new capability hearing.

5.38 Where the appeal is against dismissal, the Practitioner should not be paid

during the appeal, if it is heard after the date of termination of employment. Should the appeal be upheld, the Practitioner should be reinstated and must be paid backdated to the date of termination of employment. Where the decision is to rehear the case, the Practitioner should also be reinstated, subject to any conditions or restrictions in place at the time of the original hearing, and paid backdated to the date of termination of employment.

5.39 The Appeal Panel 5.40 The Panel shall normally consist of three appropriately trained members with

the only possible exception being clinical academic employees. The members of appeal Panel and any advisors must not have had any previous direct involvement in the matters that are the subject of the appeal, for example they must not have acted as the Designated Member. These members will be:

An independent member (trained in legal aspects of appeals) from an

approved pool. This person will be appointed from the national list held by NHS Employers for this purpose (see Annex A to “Maintaining High

CNTW(HR)02

36


Professional Standards in the Modern NHS”). This person is designated Chairman

The Chairman (or other non-executive director) of the employing organisation

A medically qualified member (or dentally qualified if appropriate) who is not

employed by the Trust. The Trust will discuss the external medical or dental member with the Chair of the Local Negotiating Committee

In the case of clinical academics a further Panel member may be appointed

in accordance with any protocol agreed between the employer and the university.

5.41 The Panel should call on others to provide specialist advice. This will include:

A consultant from the same specialty or subspecialty as the employee against whom the allegations have been made but from another NHS employer. Where the case involves a dentist this may be a consultant or an appropriate senior Practitioner. It is important that the Panel is aware of the typical standard of competence required of the grade of doctor in question. If for any reason the senior clinician is unable to advice on the appropriate level of competence, a doctor from another NHS employer in the same grade as the Practitioner in question will be asked to provide advice.

A Senior Human Resources specialist who may be from another NHS

organisation. 5.42 The Trust should make the arrangements for the Panel and notify the appellant

as soon as possible and in any event within the recommended timetable in paragraph 5.43. Every effort will be made to ensure that the Panel members are acceptable to the appellant. Where in rare cases agreement cannot be reached upon the constitution of the Panel, the appellant’s objections will be carefully noted.

5.43 It is in the interests of all concerned that appeals are heard speedily and as

soon as possible after the original capability hearing. The following timetable will apply in all cases:

Appeal by written statement to be submitted to the designated appeal point

(normally the Director of Workforce and Organisational Development) within 35 working days of the date of the written confirmation of the original decision

Hearing to take place within 35 working days of date of lodging appeal

Decision reported to the appellant and the Trust within 7 working days of the conclusion of the hearing.

5.44 The timetable will be agreed between the Trust and the appellant and

CNTW(HR)02

37


thereafter varied only by mutual agreement. The Case Manager should be informed and is responsible for ensuring that extensions are absolutely necessary and kept to a minimum.

5.45 Powers of the appeal Panel 5.46 The Appeal Panel has the right to call witnesses of its own volition, but must

notify both parties at least 14 working days in advance of the hearing and provide them with a written statement from any such witness at the same time (the Chair may wish to instruct Appeal Panel members to determine any relevant witnesses after consideration of written material from original hearing – facilitation of which will be via the Chair).

5.47 Exceptionally, where during the course of the hearing the Appeal Panel

determines that it needs to hear the evidence of a witness not called by either party, then it shall have the power to adjourn the hearing to allow for a written statement to be obtained from the witness and made available to both parties before the hearing reassembles.

5.48 If, during the course of the hearing, the Appeal Panel determines that new

evidence needs to be presented, it should consider whether an adjournment is appropriate. Much will depend on the weight of the new evidence and its relevance. The Appeal Panel has the power to determine whether to consider the new evidence as relevant to the appeal, or whether the case should be reheard, on the basis of the new evidence, by a capability hearing Panel.

5.49 Conduct of appeal hearing 5.50 All parties should have all documents, including witness statements, from the

previous capability hearing together with any new evidence. 5.51 The Practitioner may be represented in the process as stipulated in Section

0.3. 5.52 Both parties will present full statements of case to the appeal Panel and will be

subject to questioning by either party, as well as the Panel. When all the evidence has been presented, both parties shall briefly sum up. The appellant will sum up last. At this stage, no new information can be introduced. The appellant (or his/her companion) can at this stage make a statement in mitigation.

5.53 The Panel, after receiving the views of both parties, shall consider and make its

decision in private. 5.54 Decision 5.55 The decision of the appeal Panel shall be made in writing to the appellant,

containing clear reasons for the decisions taken, and shall be copied to the Case Manager such that it is received within 5 working days of the conclusion of the hearing. The decision of the appeal Panel is final and binding. There

CNTW(HR)02

38


shall be no correspondence on the decision of the Panel, except and unless clarification is required on what has been decided (but not on the merits of the case), in which case it should be sought in writing from the Chairman of the appeal Panel. The Chair will have the casting vote in cases involving a four person panel and a split decision.

5.56 Action following hearing 5.57 Records must be kept, including a report detailing the capability issues, the

Practitioner’s defence or mitigation, the action taken and the reasons for it. These records must be kept confidential and retained in accordance with the capability procedure and the Data Protection Act 1998. These records need to be made available to those with a legitimate call upon them, such as the Practitioner, the Regulatory Body, or in response to a Direction from an Employment Tribunal.

5.58 Referrals to other relevant bodies 5.59 The Chair of the Panel is responsible for ensuring all appropriate referrals to

regulatory bodies are made following the conclusion of the Capability Process and that any appropriate actions required by this policy are undertaken.

5.60 The Chair of the Capability Panel is responsible for informing the Trust’s

Responsible Officer of the outcome of the Capability process.

CNTW(HR)02

39


6.0 Introduction 6.1 A wide variety of health problems can have an impact on an individual’s clinical

performance. These conditions may arise spontaneously or be as a consequence of work place factors such as stress.

6.2 The Trust’s key principle for dealing with individuals with health problems is

that, wherever possible and consistent with reasonable public protection, they should be treated, rehabilitated or re-trained (for example if they cannot undertake exposure prone procedures) and kept in employment, rather than be lost from the National Health Service.

6.3 Retaining the services of individuals with health problems 6.4 Wherever possible the Trust will attempt to continue to employ individuals

provided this does not place patients or colleagues at risk. In particular, the Trust will consider the following actions for staff with ill-health problems:

Sick leave for the Practitioner (the Practitioner to be contacted frequently on

a pastoral basis to stop them feeling isolated) Remove the Practitioner from certain duties Reassign them to a different area of work Arrange re-training or adjustments to their working environment, with

appropriate advice from the National Clinical Assessment Service and/or Heath Education North East (HENE), under the reasonable adjustment provisions in the Equality Act 2010.

This is not an exhaustive list.

6.5 Reasonable adjustment 6.6 At all times the Practitioner will be supported by the Trust and the Occupational

Health Service (OHS) which will ensure that the Practitioner is offered every available resource to get back to practise where appropriate. The Trust will consider what reasonable adjustments could be made to their workplace or other arrangements, in line with the Equality Act 2010. In particular, it will consider:

Making adjustments to the premises Re-allocating some of a disabled person’s duties to another Transferring an employee to an existing vacancy Altering an employee’s working hours or pattern of work Assigning the employee to a different workplace Allowing absence for rehabilitation, assessment or treatment Providing additional training or retraining Acquiring/modifying equipment Modifying procedures for testing or assessment

SECTION SIX: PROCEDURE FOR DEALING WITH ISSUES OF ILL HEALTH

CNTW(HR)02

40


Providing a reader or interpreter Establishing mentoring arrangements

6.7 In some cases retirement due to ill health may be necessary. Ill health

retirement should be approached in a reasonable and considerate manner, in line with NHS Pensions Agency advice and in line with sections 6.30 - 6.33 below. However, any issues relating to conduct or capability that have arisen will be resolved, using the appropriate agreed procedures.

6.8 Handling Health Issues 6.9 Where there is an incident that points to a problem with the Practitioner’s

health, the incident may need to be investigated to determine a health problem. If the report recommends Occupational Health Service involvement, the nominated manager must immediately refer the Practitioner to an Occupational Physician within the Occupational Health Service.

6.10 The National Clinical Assessment Service (NCAS) should be approached to

offer advice on any situation and at any point where the employer is concerned about a doctor or dentist. Even apparently simple or early concerns should be referred as these are easier to deal with before they escalate.

6.11 The Occupational Physician should agree a course of action with the

Practitioner and send his/her recommendations to the line manager. If the line manager considers that there may be operational difficulties in effecting the recommendations they should write to the Executive Medical Director and a meeting should be convened with the Executive Director of Workforce and OD, the Executive Medical Director or Case Manager(Group Medical Director), the Practitioner and the Occupational Health Physician to agree a timetable of action and rehabilitation (where appropriate) The Practitioner may wish to bring a support companion to these meetings. This could be a family member, a colleague or a trade union or defence association representative. Confidentiality must be maintained by all parties at all times.

6.12 If a doctor or dentist’s ill health makes them a danger to patients and they do

not recognise that, or are not prepared to co-operate with measures to protect patients, then exclusion from work and referral to the professional regulatory body must be considered, irrespective of whether or not they have retired on the grounds of ill health.

6.13 In those cases where there is impairment of performance solely due to ill

health, disciplinary procedures will be considered only in the most exceptional of circumstances, for example if the individual concerned refuses to co-operate with the employer to resolve the underlying situation e.g. by repeatedly refusing a referral to the Occupational Health Service or the National Clinical Assessment Service. In these circumstances the procedures in Section three of this policy should be followed.

6.14 There will be circumstances where a Practitioner who is subject to disciplinary

proceedings puts forward a case, on health grounds, that the proceedings

CNTW(HR)02

41


should be delayed, modified or terminated. In such cases the Trust will refer the Practitioner to the Occupational Health Service for assessment as soon as possible. Unreasonable refusal to accept a referral to, or to co-operate with, the Occupational Health Service under these circumstances, may give separate grounds for pursuing disciplinary action.

6.15 Special Professional Panels (generally referred to as the “three wise men”)

were set up by under circular HC (82)13. This part of the procedure replaces HC (82)13 which is cancelled.

6.16 Managing a practitioner’s absence, whether short- or long-term, will be done in

accordance with the CNTW Attendance Management Policy (Ref CNTW HR (10))

6.17 Appeals 6.18 Any practitioner who has been dismissed on the grounds of capability due to ill

health has the right to appeal against this decision to the Director of Workforce and OD.

6.19 This appeal will be handled in line with the appeal process set out in Section

five. For practitioners who were dismissed according to Section five of this policy their appeal should be made in line with paragraph 5.33.

CNTW(HR)02

42


7.0 Introduction 7.1 When serious concerns are raised about a Practitioner the Trust will urgently

consider whether it is necessary to place temporary restrictions on their practice. This might be to amend or restrict their clinical duties, obtain undertakings or provide for the exclusion of the Practitioner from the workplace. Exclusion of clinical staff from the workplace is a temporary expedient, a precautionary measure and not a disciplinary sanction. It is reserved for only the most exceptional circumstances. At any point in the process where the Case Manager has reached the clear judgment that a Practitioner is considered to be a serious potential danger to patients or staff, that Practitioner must be referred to the General Medical Council/General Dental Council, whether or not the case has been referred to the National Clinical Assessment Service. Consideration should also be given as to whether the issue of an alert letter should be requested.

7.2 The phrase “exclusion from work‟ replaces the word “suspension‟ which can be

confused with action taken by the Medical Practitioners Tribunal Service (MPTS) to suspend the Practitioner’s name from the register as an interim order pending a substantive hearing of their case or as an outcome of Medical Practitioners Tribunal (MPT).

7.3 Summary of Principles

Restriction of practice or exclusion from work are not disciplinary sanctions

Restriction of practice or exclusion from work will not automatically be imposed when a concern is investigated

In exceptional circumstances, an initial immediate time-limited exclusion of no more than two weeks will be implemented only if warranted

The National Clinical Assessment Service must be notified before a formal exclusion

Exclusion from work must be reviewed at intervals (of 4 weeks) otherwise it lapses and the doctor can return to work

The Chief Executive is responsible for ensuring that senior managers are always available who are trained and authorised to exclude a doctor in an emergency

Exclusion from work is used only as an interim measure whilst action to resolve a problem is being considered

Where a Practitioner is excluded, it is for the minimum necessary period of time: this can be up to but no more than four weeks at a time

All extensions are reviewed and a brief report provided to the Chief Executive and the Trust Board

A detailed report is provided to the Designated Member who will be responsible for monitoring the situation until the exclusion has been lifted

SECTION SEVEN:

RESTRICTION OF PRACTICE AND EXCLUSION FROM WORK

CNTW(HR)02

43


7.4 Managing the risk to patients 7.5 When serious concerns are raised about a Practitioner, the Trust will urgently

consider whether it is necessary to place temporary restrictions on that Practitioner’s practice. This might be to amend or restrict their clinical duties, obtain undertakings or provide for the exclusion of the Practitioner from the workplace. Where there are concerns about a doctor or dentist in training, the Dean of Postgraduate Medical Studies should be involved as soon as possible.

Exclusion of clinical staff from the workplace is a temporary expedient, a precautionary measure and not a disciplinary sanction. It is reserved for only the most exceptional circumstances.

7.6 Exclusion will only be used:

To protect the interest of patients or other staff; and/or

To assist the investigative process when there is a clear risk that the Practitioner’s presence would impede the gathering of evidence

It is imperative that exclusion from work is not misused or seen as the only course of action that could be taken. The degree of action must be proportionate to the nature and the seriousness of the concerns and the need to protect patients, the Practitioner concerned and/or their colleagues.

7.7 Alternative ways to manage risks, avoiding exclusion, include:

Executive Medical Director, Deputy Medical Director, Group Medical Director or Clinical Director supervision of normal contractual clinical duties

Restricting the Practitioner to certain forms of clinical duties for example

Administrative, research/audit, teaching and other educational duties. By mutual agreement the latter might include some formal retraining, remediation or re-skilling1

Sick leave for the investigation of specific health problems

In cases where the concern is about the Executive Medical Director, the Executive Director of Workforce and OD, in conjunction with the Chief Executive, will need to consider alternative ways of managing the risk. This may involve discussion with the Trust’s legal advisors.

In cases relating to the capability of a Practitioner, consideration will be given to whether an action plan to resolve the problem can be agreed with the Practitioner. Advice on the practicality of this approach will be sought from the National Clinical Assessment Service. If the nature of the problem and a workable remedy cannot be determined in this way, the Case Manager will seek to agree with the Practitioner to refer the case to the National Clinical Assessment Service, which can assess the problem in more depth and give

CNTW(HR)02

44


advice on any action necessary. The Case Manager will seek immediate telephone advice from the National Clinical Assessment Service when considering restriction to practice or exclusion.

7.8 The Exclusion Process 7.09 The Trust will not exclude a Practitioner for more than four weeks at a time.

The justification for continued exclusion must be reviewed on a regular basis and before any further four-week period of exclusion is imposed. Senior managers and the Trust Board have responsibilities for ensuring that the process is carried out quickly and fairly, kept under review and that the total period of exclusion is not prolonged.

7.10 Roles of officers in relation to exclusion 7.11 The case will be discussed fully with, the Executive Medical Director, the

Director of Workforce & OD, the National Clinical Assessment Service and other interested parties (such as the police where there are serious criminal allegations or the Counter Fraud & Security Management Service) prior to the decision to exclude a Practitioner. In the rare cases where immediate exclusion is required, the above parties must discuss the case at the earliest opportunity following exclusion, preferably at a case conference. Reasons must be given whenever an exclusion is implemented.

7.12 The authority to exclude a member of staff is vested in those individuals listed

in the table in Appendix 3. 7.13 Immediate exclusion 7.14 An immediate time-limited exclusion may be necessary to:

a) Protect the interests of patients or other staff; and/or

b) Assist the investigation process when there is a clear risk that the Practitioner’s presence would impede the gathering of evidence

The requirement for this may arise after:

A critical incident when serious allegations have been made; or

There has been a break down in relationships between a colleague and the rest of the team; or

The presence of the Practitioner is likely to hinder the investigation

Such an exclusion will allow a more measured consideration to be undertaken and to enable a preliminary situation analysis, to seek further advice from the National Clinical Assessment Service and to convene a case conference. The manager making the exclusion must explain why the exclusion is being made in broad terms (there may be no formal allegation at this stage) and agree a date up to a maximum of two weeks away at which the Practitioner should

CNTW(HR)02

45


return to the workplace for a further meeting. The Case Manager must advise the Practitioner of their rights, including rights of representation.

7.15 Formal exclusion 7.16 A formal exclusion may only take place after the Case Manager has first

considered whether there is a case to answer and then considered, at a case conference, whether there is reasonable and proper cause to exclude. The National Clinical Assessment Service must be consulted where formal exclusion is being considered. If a Case Investigator has been appointed he or she must produce a preliminary report as soon as is possible to be available for the case conference. This preliminary report is advisory to enable the Case Manager to decide on the next steps as appropriate.

NOTE: In very serious cases, it may be necessary to urgently exclude a Practitioner without the need to follow each of the steps set out in para 7.16 above. In such cases the Case Manager will make reasonable and proper steps to discuss the matter with the Director of Workforce & OD prior to taking such action.

7.17 The report should provide sufficient information for a decision to be made as to

whether:

The allegation appears unfounded; or There is a potential misconduct issue; or There is a concern about the Practitioner's capability; or The complexity of the case warrants further detailed investigation before

advice can be given on the way forward and what needs to be inquired into 7.18 Full consideration should be given to whether the Practitioner could continue in

or (in cases of an immediate exclusion) return to work in a limited capacity or in an alternative, possibly non-clinical role, pending the resolution of the case.

7.19 When the Practitioner is informed of the exclusion, there should, where

practical, be a witness present and the nature of the allegations or areas of concern should be conveyed to the Practitioner. The Practitioner should be told of the reason(s) why formal exclusion is regarded as the only way to deal with the case. At this stage the Practitioner should be given the opportunity to state their case and propose alternatives to exclusion (e.g. further training, referral to occupational health, referral to the National Clinical Assessment Service with voluntary restriction etc).

7.20 The letter should state the effective date and time, duration (up to 4 weeks), the

content of the allegations, the terms of the exclusion (e.g. exclusion from the premises and the need to remain available for work) and that a full investigation or what other action will follow. The Practitioner and their companion should be advised that they may make representations about the exclusion to the Designated Member at any time after receipt of the letter confirming the exclusion.

CNTW(HR)02

46


7.21 In cases when disciplinary procedures are being followed, exclusion may be extended for four-week renewable periods until the completion of disciplinary procedures if a return to work is considered inappropriate. The exclusion will still only last for four weeks at a time and be subject to review. The exclusion will usually be lifted and the Practitioner allowed back to work, with or without conditions placed upon the employment, as soon as the original reasons for exclusion no longer apply.

7.22 If the Case Manager considers that the exclusion will need to be extended over

8 weeks due to reasons outside of his or her control (for example because of a police investigation), the case must be referred to the National Clinical Assessment Service for advice as to whether the case is being handled in the most effective way and suggestions as to possible ways forward. However, even during this prolonged period the principle of four-week "renewability" must be adhered to.

7.23 If at any time after the Practitioner has been excluded from work, investigation

reveals that either the allegations are without foundation or that further investigation can continue with the Practitioner working normally or with restrictions, the Case Manager must lift the exclusion, make arrangements for the Practitioner to return to work with any appropriate support as soon as practicable.

7.24 Exclusion from premises 7.25 Practitioners should not be automatically barred from the premises upon

exclusion from work. The Case Manager must always consider whether a bar from the premises is absolutely necessary. There are certain circumstances, however, where the Practitioner should be excluded entirely from the premises. This could be, for example, where there may be a danger of tampering with evidence, or where the Practitioner may be a serious potential danger to patients or other staff. In other circumstances, however, there may be no reason to exclude the Practitioner from the premises.

7.26 Keeping in contact and availability for work 7.27 Exclusion under this procedure will be on full pay; therefore the Practitioner

must remain available for work with their employer during their normal contracted hours. The Practitioner must inform the Case Manager of any other organisation(s) with whom they undertake either voluntary or paid work and seek their Case Manager's consent to continuing to undertake such work or to take annual leave or study leave. The Practitioner should be reminded of these contractual obligations but would be given 24 hours notice to return to work. In exceptional circumstances the Case Manager may decide that payment is not justified because the Practitioner is no longer available for work (e.g. abroad without agreement).

7.28 The Case Manager should make arrangements to ensure that the Practitioner

can keep in contact with colleagues on professional developments, and take part in Continuing Professional Development (CPD) and clinical audit activities

CNTW(HR)02

47


with the same level of support as other doctors or dentists in their employment. A mentor could be appointed for this purpose if a colleague is willing to undertake this role.

7.29 Informing other organisations 7.30 In cases where there is concern that the Practitioner may be a danger to

patients, the Trust has an obligation to inform such other organisations including the private sector, of any restriction on practice or exclusion and provide a summary of the reasons for it. Details of other employers (National Health Service and non-National Health Service) may be readily available from job plans, but where it is not the Practitioner should supply them. Failure to do so may result in further disciplinary action or referral to the relevant regulatory body, as the paramount interest is the safety of patients. Where a National Health Service employer has placed restrictions on practice, the Practitioner should agree not to undertake any work in that area of practice with any other employer.

7.31 Where the Case Manager believes that the Practitioner is practicing in other

parts of the National Health Service or in the private sector in breach or defiance of an undertaking not to do so, he or she should contact the National Clinical Assessment Service (NCAS) to consider the issue of an alert letter.

7.32 Informal exclusion 7.33 No Practitioner will be excluded from work other than through this procedure.

The Trust will not use “gardening leave” or other informal arrangements as a means of resolving a problem covered by this procedure.

7.34 Keeping exclusions and restrictions under review and informing the Trust

Board 7.35 The Trust Board must be informed about exclusion/restrictions at the earliest

opportunity. The Board has a responsibility to ensure that the organisation's internal procedures are being followed. Therefore:

A summary of the progress of each case at the end of each period of

exclusion/restricted practice will be provided to the Board, demonstrating that procedures are being correctly followed and that all reasonable efforts are being made to bring the situation to an end as quickly as possible;

A monthly statistical summary showing all exclusions/restricted practice with their duration and number of times the exclusion/restricted practice had been reviewed and extended will be provided.

7.36 Regular review 7.37 The Case Manager must review the exclusion/restricted practice before the

end of each four week period and report the outcome to the Chief Executive and the Trust Board. This report is advisory and it would be for the Case Manager to decide on the next steps as appropriate. The exclusion/restricted

CNTW(HR)02

48


practice should usually be lifted and the Practitioner allowed back to work, with or without conditions placed upon the employment, at any time the original reasons for exclusion/restricted practice no longer apply and there are no other reasons for exclusion/restricted practice. The exclusion/restricted practice will lapse and the Practitioner will be entitled to return to work at the end of the four-week period if the exclusion/restricted practice is not actively reviewed.

It is important to recognise that Board members might be required to sit as members of a future disciplinary or appeal Panel. Therefore, information to the Board should only be sufficient to enable the Board to satisfy itself that the procedures are being followed. Only the Designated Member should be involved to any significant degree in each review. Careful consideration must be given as to whether the interests of patients, other staff, the Practitioner, and/or the needs of the investigative process continue to necessitate exclusion and give full consideration to the option of the Practitioner returning to limited or alternative duties where practicable.

7.38 The Trust must take review action before the end of each 4-week period. After

two exclusions, the National Clinical Assessment Service must be called in. The information below outlines the activities that must be undertaken at different stages of exclusion. The Trust will use the same time frames to review any restrictions on practice that have been placed on a Practitioner.

7.39 First and second reviews (and reviews after the third review) 7.40 Before the end of each exclusion (of up to 4 weeks) the case manager must

review the position.

The Case Manager decides on next steps as appropriate, taking into account the views of the Practitioner. Further renewal may be for up to 4 weeks at a time

The Case Manager submits an advisory report of outcomes to the Chief Executive and the Board of Directors

Each renewal is a formal matter and must be documented as such The Practitioner must be sent written notification on each occasion

7.41 Third review 7.42 If the Practitioner has been excluded for more than three periods:

A report must be made to the Chief Executive outlining the reasons for the continued exclusion, why restrictions on practice would not be an appropriate alternative, and if the investigation has not been completed, a timetable for completion of the investigation

The Chief Executive must report to the Designated Member

The case must formally be referred to the National Clinical Assessment Service explaining why continued exclusion is appropriate and what steps are being taken to conclude the exclusion, at the earliest opportunity

CNTW(HR)02

49


The National Clinical Assessment Service will review the case and advise the Trust on the handling of the case until it is concluded

7.43 Six months review 7.44 If the exclusion has been extended over six months:

A further position report must be made by the Chief Executive to the Trust Board indicating the reason for continuing the exclusion, the anticipated time scale for completing the process and the actual and anticipated costs of exclusion

7.45 There will be a normal maximum limit of six months exclusion, except for those cases involving criminal investigations of the Practitioner concerned. The Trust and the National Clinical Assessment Service will actively review such cases at least every six months.

7.46 Return to Work 7.47 If it is decided that the exclusion should come to an end, there must be formal

arrangements for the return to work of the Practitioner. It must be clear whether clinical and other responsibilities are to remain unchanged or what the duties and restrictions are to be and any monitoring arrangements to ensure patient safety.

7.48 Roles and responsibilities of officer with respect to exclusion 7.49 The Chief Executive has overall responsibility for managing exclusion

procedures and for ensuring that cases are properly managed. The decision to exclude a practitioner must be taken only by persons nominated under paragraph 7.50

7.50 The case should be discussed fully with the Chief Executive, the Executive

Medical Director, the Executive Director of Workforce and Organisational Development, the NCAS and other interested parties (such as the police or the Counter Fraud and Security Management Service) where there are criminal allegations prior to the decision to exclude a practitioner. In the rare cases where immediate exclusion is required, the above parties must discuss the case at the earliest opportunity following exclusion, preferably at a case conference.

7.51 The authority to exclude a practitioner will be vested in the Chief Executive,

Executive Medical Director, Group Medical Directors and Deputy Medical Directors.

7.52 The Executive Medical Director will act as the Case Manager or delegate this

role to a Group Medical Director, deputy Medical Director or Senior Manager to

CNTW(HR)02

50


oversee the case and appoint a Case Investigator to explore and report on the circumstances that have led to the need to exclude the staff member. The Case Investigator will provide factual information to assist the Case Manager in reviewing the need for exclusion and making reports on progress to the Chief Executive or designated Board member.

7.53 The Designated Board Member The Board of Directors will designate one of its non-executive members as a

"designated Board member" under this policy. The designated Board member will oversee the Case Manager and Case Investigator during the investigation process and ensures momentum of the process.

7.54 This Designated Board Member's responsibilities include:

receiving reports and reviewing the continued exclusion from work of the practitioner

considering any representations from the practitioner about his or her exclusion

considering any representations about the investigation 7.55 The practitioner may make representations to the designated Board member in

regard to exclusion, or investigation of a case. The designated Board member must also ensure, among other matters, that time frames for investigation or exclusion are consistent with the principles of Article 6 of the European Convention on Human Rights (which, broadly speaking sets out the framework of the rights to a fair hearing).

7.56 The Case Manager will provide a detailed report when requested to the

Designated Board Member. 7.57 Board members may be required to sit as members of a disciplinary or appeal

panel. Therefore, information given to the Board of Directors should only be sufficient to enable the Board of Directors to satisfy itself that the policy is being followed. Only the designated Board member should be involved to any significant degree in each review.

CNTW(HR)02

51


8.0 Associated Documents

CNTW(HR)04 Disciplinary Policy

CNTW(HR)10 Attendance Management/Sickness Absence Management Policy

CNTW(HR)12 Stress at Work Policy 8.1 Fair Blame 8.2 The Trust is committed to developing an open learning culture. It has endorsed

the view that, wherever possible, disciplinary action will not be taken against members of staff who report near misses and adverse incidents, although there may be clearly defined occasions where disciplinary action will be taken.

8.3 References

Equality Act 2010

GMC Code of Conduct

Maintaining High Professional Standards in the NHS 2005

NCAS guidance

8.4 Identification of Stakeholders 8.5 The following stakeholders have been identified

North Locality Care Group

Central Locality Care Group

Cumbria Locality Care Group

South Locality Care Group

Corporate Decision Team

Business Delivery Group

Safer Care Group

Communications, Finance, IM&T

Commissioning and Quality Assurance

Workforce and Organisational Development

NTW Solutions

Local Negotiating Committee

Medical Directorate

Staff Side

Internal Audit

SECTION EIGHT:

CONCLUSION

CNTW(HR)02

52


8.6 Fraud, Bribery and Corruption

8.7 In accordance with the Trust’s CNTW(O)23 – Fraud, Bribery and Corruption Policy, all suspected cases of fraud and corruption should be reported immediately to the Trust’s Local Counter Fraud Specialist or to the Executive Director of Finance.

8.8 Training

8.9 All relevant managers and senior Workforce Staff to attend the appropriate training, please see Appendix B

8.10 Implementation

8.11 The policy will be implemented from June 2018

8.12 Monitoring

8.13 The policy will be monitored in accordance with policy standards as given at

Appendix C.

CNTW(HR)02

53


Appendix A

Equality Analysis Screening Toolkit

Names of Individuals

involved in Review

Date of Initial

Screening

Review Date Service Area / Directorate

Christopher Rowlands Jun 2018 Jun 2021 Workforce and Organisational

Development

Policy to be analysed: Is this policy new or existing?

CNTW(HR)02- Handling Concerns about Doctors Existing

What are the intended outcomes of this work?

This policy is designed to set out the procedures to follow in the management of professional conduct and capability

concerns relating to doctors and has been based upon national guidance, including Maintaining High Professional

Standards (MHPS, 2005). It provides an overarching framework for managing concerns about doctors’ performance

and makes reference to relevant Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust policies and

other external guidance, such as documents published by the National Clinical Assessment Service (NCAS).

Who will be affected?

Policy concerns Doctors

Protected Characteristics under the Equality Act 2010. he following characteristics have protection

under the Act, therefore require further analysis of the potential impact the policy may have upon them

Disability Where the practitioner’s health issues come within the remit of the protected

characteristic of disability under The Equality Act 2010, the Trust under a duty to

consider what reasonable adjustments can be made to enable the practitioner to

continue in employment. At all times the practitioner should be supported by the

Trust who should ensure that the practitioner is offered every available resource

to enable him/her to continue in practice or return to practice as appropriate. This

process should consider what reasonable adjustments could be made to the

practitioner’s workplace conditions, bearing in mind their need to negate any

possible disadvantage a practitioner might have compared to his/her

nondisabled colleagues. The Trust’s Equality and Diversity Lead can provide

assistance on the matter of reasonable adjustments.

Sex No differential impact

Race It is possible that there are cultural issues around handling concerns. For

example, some cultures may be more comfortable with accepting fault in a

professional sphere than others. We have no specific evidence about how this

may affect different groups but should be mindful when we are examining

concerns where there may be differing cultural issues.

Age No differential impact

Gender reassignment No differential impact

Appendix 1

CNTW(HR)02

54


(including transgender)

Sexual orientation No differential impact

Religion or belief No differential impact

Marriage and Civil

Partnership

No differential impact

Pregnancy and maternity No differential impact

Carers No differential impact

Other identified groups Not applicable

How have you engaged stakeholders in gathering evidence or testing the evidence available?

Consultation with medical workforce

How have you engaged stakeholders in testing the policy or programme proposals?

Stakeholders are consulted as part of the Trust’s approach to the development of policies. During the impact

assessment documents from the GMC and the MHPS have been consulted. In addition impact assessments of

similar policies in Foundation Trusts across the country have been consulted to ensure parity.

For each engagement activity, please state who was involved, how and when they were engaged,

and the key outputs:

Trustwide consultation has taken place, the views of staff side have been taken on board and the policy will receive

scrutiny from the Trust’s Policy Group prior to receiving approval.

Summary of Analysis

Potential for negative impact particularly on disability related issues and on race/cultural issues. In both cases these

impacts will be mitigated by clear consistent approaches. It is recommended that the Trust’s Equality and Diversity

Lead is consulted where concerns may relate to a disability issue and that the impact that culture may have when

addressing concerns. It is also suggested that the section on capability as well as health makes reference to the

importance of establishing whether any reasonable adjustments as defined under the Equality Act 2010 may be

required. It is also suggested that support from the Staff Networks may be a possibility

Now consider and detail below how the proposals impact on elimination of discrimination, harassment and

victimisation, advance the equality of opportunity and promote good relations between groups. Where

there is evidence, address each protected characteristic

Eliminate discrimination, harassment and

victimisation

The policy alongside the recommendations in the

equality analysis should ensure that its implementation

will help to eliminate discrimination, harassment and

victimisation.

Advance equality of opportunity The practice of the policy should ensure that regardless

of protected characteristic(s) the policy should not

discriminate with regard to equality of opportunity

Promote good relations between groups Clear consistent policy should help to achieve this

CNTW(HR)02

55


What is the overall impact? Mindful of the recommendation around disability and race

the impact of the policy should be neutral

Addressing the impact on equalities Ensuring that where the protected characteristics of race

or disability are encountered in the delivery of the policy

that the issues raised in the impact assessment are

accounted for.

From the outcome of this Screening, have negative impacts been identified for any protected

characteristics as defined by the Equality Act 2010? Yes

If yes, has a Full Impact Assessment been recommended? If not, why not?

No – recommendations for both protected characteristics have been made in light of research undertaken by the

GMC and MHPS. Full Impact Assessment will take place if measures put in place are found not to mitigate potential

negative impact

Manager’s signature: Christopher Rowlands Date Jun 2018

CNTW(HR)02

56


Appendix B

Communication and Training Check list for policies

Key Questions for the accountable committees designing, reviewing or agreeing a new Trust policy

Is this a new policy with new training requirements or a change to an existing policy?

Change to an existing policy

If it is a change to an existing policy are there changes to the existing model of training delivery? If yes specify below.

Revised medical manager training

Are the awareness/training needs required to deliver the changes by law, national or local standards or best practice? Please give specific evidence that identifies the training need, e.g. National Guidance, CQC, NHS Solutions etc.

Please identify the risks if training does not occur

Best practice

Please specify which staff groups need to undertake this awareness/training. Please be specific. It may well be the case that certain groups will require different levels e.g. staff group A requires awareness and staff group B requires training.

All Associate Directors, Group Medical Directors and potential Case Investigators

Is there a staff group that should be prioritised for this training / awareness?

Group Medical Directors and Associate Medical Directors

Please outline how the training will be delivered. Include who will deliver it and by what method.

The following may be useful to consider:

Team brief/e bulletin of summary

Management cascade

Newsletter/leaflets/payslip attachment

Focus groups for those concerned

Local Induction Training

Awareness sessions for those affected by the new

Informal coaching by Heads of Workforce & OD

Periodic training workshops with Deputy Medical Director and Workforce.

CNTW(HR)02

57


policy

Please identify a link person who will liaise with the training department to arrange details for the Trust Training Prospectus, Administration needs etc.

Amanda VennerHead of Workforce Planning & Medical Education

Training Needs Analysis

Staff/Professional Group Type of

training

Duration

of

Training

Frequency of Training

All Associate Directors, Group

Medical Directors and potential

Case Investigators

Attendance at

medical

managers

training

one day 3 yearly

Should any advice be required, please contact:- 0191 245 6777 (Option 1)

CNTW(HR)02

58


Appendix C

Monitoring Tool

Statement

The Trust is working towards effective clinical governance and governance systems. To

demonstrate effective care delivery and compliance, policy authors are required to include how

monitoring of this policy is linked to auditable standards/key performance indicators will be

undertaken using this framework.

CNTW(HR)02 – Handling Concerns about Doctors - Monitoring Framework

Auditable Standard/Key Performance Indicators

Frequency/Method/Person Responsible

Where results and any associated action plan will be reported to implemented and monitored; (this will usually be via the relevant governance group).

1.

NCAS informed and advice actioned

Case Manager at outset and through monthly case management reporting process

Medical Performance Meeting

2.

Monitor timescales for investigations- up to 4 weeks duration

Case Manager, weekly basis and through monthly case management reporting process

Medical Performance Meeting

3.

Immediate exclusion timescale maximum 2 weeks with review

Designated Board Memberand Case Manager, monthly and through monthly case management reporting process

Board of Directors

4. Formal exclusion timescale up to maximum 4 weeks

Designated Board MemberAnd Case Manager, monthly and through monthly case management reporting process

Board of Directors

..continued

CNTW(HR)02

59


Auditable Standard/Key

Performance Indicators

Frequency/Method/Person

Responsible

Where results and any

associated action plan

will be reported to

implemented and

monitored; (this will

usually be via the

relevant governance

group).

5.

Formal Exclusion extensions reviewed on up to 4 week renewable periods

Designated Board Member

And Case Manager, monthly and through monthly case management reporting process

Board of Directors

6.

Exclusions extended over 6 months

CEO report to CCG, following 6 months and through monthly case management reporting process

Board of Directors

The Author(s) of each policy is required to complete this monitoring template and ensure that

these results are taken to the appropriate Quality and Performance Governance Group in line with

the frequency set out.