Clarity on MHPS capability proceedings

In a decision which has been widely welcomed by those applying the 'Maintaining High Professional Standards in the Modern NHS' (MHPS) procedure, the High Court has clarified the interrelationship between NCAS and the operation of MHPS, when considering doctors' capability proceedings.  Members of the Bevan Brittan employment team summarise the decision and discuss its likely implications in the light of their experience of navigating the intricacies of MHPS. 

The background

The highly complex, 'Maintaining High Professional Standards in the Modern NHS' – commonly known as 'MHPS' - sets out a framework for the conduct of NHS doctors' and dentists' disciplinary and capability procedures.  All NHS bodies were required to implement MHPS within their local procedures in 2005 and most Foundation Trusts have continued to use it (though not strictly bound to do so).

As a national collectively agreed framework document MHPS is, in places, aspirational and includes vague, contradictory or difficult provisions.  Whilst these issues can be addressed by careful implementation and refinement at a local level, most Trusts have implemented the framework document wholesale.
Because MHPS is incorporated into medical practitioners' contracts of employment, the practitioners can challenge alleged breaches of its provisions by seeking High Court injunctions.  These are particularly frequent in MHPS capability proceedings, in which MHPS is clear that the National Clinical Assessment Service ('NCAS') should be heavily involved in assessing practitioners' performance.

In a 2011 case called Lim v Royal Wolverhampton Hospitals NHS Trust, the High Court considered whether the Trust could proceed to a capability hearing without having exhausted NCAS's involvement.  It allowed an injunction to prevent the Trust from doing so before NCAS had found that the practitioner's performance was "so fundamentally flawed that no educational and/or organisational action plan has a realistic prospect of success".  As NCAS is, understandably, unwilling to conclude this in most circumstances and only after very exhaustive assessment, this decision created significant delays and practical difficulties for NHS employers.

The facts

In Chakrabarty v Ipswich Hospital Trust, the Claimant, Dr Chakrabarty, sought an injunction to prevent the Trust from proceeding to a proposed capability hearing under the MHPS procedure.

Dr Chakrabarty has been employed, since March 2004, by Ipswich Hospital NHS Trust ('the Trust') as a Consultant in Cardiology and General Medicine.  Concerns were raised regarding Dr Chakrabarty in October 2004, which were initially investigated locally by the Trust, but were then referred to NCAS and the General Medical Council ('GMC').  NCAS considered undertaking a performance assessment of Dr Chakrabarty but this did not go ahead, as it was overtaken by the GMC's decision to carry out its own assessment.  A further request to NCAS to carry out an assessment, in 2013, was refused and a final decision was taken that no NCAS assessment would be undertaken; this was on the basis that it would add nothing further to the GMC's Performance Assessment Report, and Dr Chakrabarty was reluctant to engage with NCAS.

Given that a final decision had been made by NCAS and there were concerns about Dr Chakrabarty's clinical abilities, the Trust decided to convene a capability hearing in January 2014.

Seeking an injunction, Dr Chakrabarty argued that the Trust could not proceed to an MHPS capability hearing until NCAS had carried out an assessment, and the GMC proceedings had concluded.

The decision

The High Court focused on the provisions of paragraphs 14 and 15 of Part IV of MHPS, which it found were contractual (unlike some other provisions such as those relating to postponements at paragraph 17).  These two paragraphs deal with arrangements before a capability hearing, including NCAS involvement.
In a practical and robust decision, which will be welcomed by NHS employer organisations, the High Court refused Dr Chakrabarty's application for an injunction and said there is nothing preventing a Trust from commencing an MHPS procedure

• where an NCAS assessment has not been agreed (or is not practical); or
• where NCAS has completed an assessment but an action plan cannot be agreed.

It is mandatory for a Trust (once local action has been ruled out) to refer the matter to NCAS for it to consider whether an assessment should be carried out.  However, there is no obligation on NCAS to carry out an assessment and no obligation to provide assistance in drawing up an action plan.

A Trust cannot act irrationally or unreasonably in rejecting an NCAS action plan, simply in order to move to a capability hearing.  However, where an employee and a Trust are in dispute over an action plan, the appropriate forum for resolving that dispute is a capability panel, convened under MHPS.

The future for MHPS?

The decision in Chakrabarty effectively turns the judgment in Lim (see above) on its head and confirms that it is not always necessary for an NCAS assessment and recommendation to take place as a mandatory pre-condition to a capability hearing.  This clearly continues to be the usual route to follow, but there do now appear to be more practical exceptions where this is simply not possible.

In addition to the guidance provided above, some further observations following the High Court's judgment are as follows.

• As the High Court found, although MHPS is a creature of statute, it is not statute itself and should not, therefore, be treated as such; its interpretation should not be "unduly restrictive" (paragraph 116). It is important to take a practical, purposive approach, having regard to the purpose of NCAS and the way in which NCAS performs those functions.  In working with clients on interpreting the finer points of MHPS, we will certainly find this analysis useful – particularly in assisting with managing practitioners who are unwilling to engage.
• As Bevan Brittan's John Moore (currently on secondment with NCAS) comments "it is helpful that the High Court has addressed the question of the role of NCAS in the context of MHPS, and confirmed its role as an advisory body providing guidance; not a regulator or a final arbiter.
• As Bevan Brittan's Alastair Currie comments "Whilst helpful, this case again highlights the complexity and difficulty of the MHPS framework, which is crying out for practical revision.  We are assisting several of our clients to renegotiate and implement clearer forms of the procedure locally, or to consider more substantial shifts away from it"

In addition to advising on MHPS, we are also working with clients to provide practical training on handling MHPS issues in order to assist with skills transfers into clients' management teams.  For more information please contact Jodie Sinclair.