the impact of Chakrabarty v Ipswich

Hospital NHS

• requirement to refer to NCAS before a

hearing

• paragraph 4, part IV…

“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”

Paragraph 4, Part IV

Lim v Royal Wolverhampton NHS Trust

• employed as a consultant anesthetist since

2003

• November 2007 - serious untoward

incident

• Trust contacted NCAS and obtained three

expert reports all of which were critical of

L

• Trust took the view that they didn’t need

to refer to NCAS for an assessment prior to

a capability hearing on this basis

• L argues that Trust had to refer him to

NCAS for an assessment before they could

proceed

• the High Court held that the Trust could

not proceed to a capability hearing about

L before it had referred the matter to

NCAS for assessment and the NCAS

assessment panel had advised that no

action plan had a realistic chance of

success

• the Trust would be in breach of contract if

it were to proceed to a capability hearing

• Trusts left in limbo - couldn’t proceed to

a capability hearing if either

‐ NCAS declined to undertake an

assessment

‐ they did assess but did not conclude no

action plan had a realistic chance of

success

Also put NCAS in a difficult position

Chakrabarty v Ipswich Hospital NHS Trust

Consultant in Cardiology and General Medicine

Internal investigation in 2004-2005 identified clinical concerns

GMC performance assessment

Trust made another request for an NCAS assessment – declined as wouldn’t add anything to GMC

assessment

Trust wished to proceed to a capability hearing

Dr Chakrabarty applied for an injunction

NCAS intervened in proceedings to set out their position

Mrs Justice Simler - “the only mandatory obligation on a Trust once

local action has been ruled out is to refer [our emphasis] the

matter to the NCAS for it to consider whether an assessment

should be carried out”.

decision to proceed to a capability panel only when an NCAS

assessment has concluded “the practitioner’s performance is so

fundamentally flawed that no educational and/or organisational

action plan has a realistic chance of success” was only an example

and not a requirement.

Injunction was refused and Trust can proceed to a capability

hearing

Still a requirement to refer the case to NCAS

for consideration of an assessment

Examples of where may be declined…

There has been a GMC assessment

There have been other expert reports e.g. Royal College which have concluded there are serious concerns

It is practically difficult as doctor excluded for a lengthy period and Trust cannot find placement to undertake an assessment

If assessment declined, can now proceed to

capability hearing as long as you have

enough evidence

Can also proceed even if assessment does not conclude that a

doctor’s “performance is so fundamentally flawed that no

educational and/or organisational action plan has a realistic chance

of success”

Such a statement is rare in our experience.

Even if an assessment has been carried out

and an action plan proposed, only if the

Trust agrees with the plan does the Trust

need to proceed with it. Otherwise it may

proceed to a capability panel.

Regional advisers

Assessment reports

Alternatives to full assessments

We hope you found in useful.

Please get in touch if you have any questions or wish to

discuss the topic we covered further…

e helen.badger@brownejacobson.com

t +44 (0) 121 237 4554