The National Health Service (Performers Lists) Regulations 2004 were revoked with effect from 1 April 2013. The applicable regulations for England from that date are set out in the National Health Service (Performers Lists) (England) Regulations 2013.
In line with the regulatory changes, NHS England has published guidance in relation to its new policy and procedures relating to the identification, management and support of underperforming performers. This document summarises some of the key elements of that guidance.
The key consideration underpinning the new performer management framework is that the process for identifying and analysing performance issues must be kept separate from any final determinations regarding performers. The former has been delegated by NHS England to Performance Screening Groups in each area team (each a PSG) whilst responsibility for the latter has been delegated to the Performers List Decision Panel in each area team (each a PLDP).
Each PSG’s core membership will comprise of:
a senior manager with responsibility for quality and performance, who shall assume the role as chair of that PSG
- a GP appointed by the responsible officer
- appropriate clinicians from each of the other primary care performer or contractor groups
- a direct report to the head of primary care
- local representative committee nominees
Decisions made by a PSG must involve all the core members of the PSG (or their nominated deputies).
As noted above, the PSG will not be responsible for making decisions under the new regulations as this is within the PLDP’s remit. The PSG’s role is more support-focussed and will involve:
reviewing cases of quality or performance concern
- considering whether further action or information is required
- initiating an investigation (where appropriate)
- deciding upon a relevant course of action, the level of support and resources required
The relevant course of action will vary in each instance and may range from requiring the practitioner to undertake certain professional development training through to referring the matter to the PLDP. PLDP referrals may be appropriate if the concerns raised are sufficiently serious such that local resolution is inappropriate, the performer is not improving or is non-compliant with a previously agreed course of action.
The PSG is also involved in the post-decision phase as it is responsible for monitoring the implementation and progress of any agreed action plans and PLDP recommendations. Once concerns are resolved, the PSG will be responsible for closing the case, including undertaking a final risk assessment which can be used to trigger an appropriate level of escalation should any subsequent issues arise.
Each PLDP will have the following core members:
an independent lay chair
- the medical director or their nominated deputy
- the nurse director or their nominated deputy
- a discipline specific local representative committee nominee
- a senior manager with responsibility for quality and performance
The senior manager is the only PLDP member who may be involved in the identification and analysis of performance issues. Accordingly, the senior manager must not be involved in the PLDP’s decision making process and is limited to presenting each practitioner case to the PLDP and assisting the PLDP in their discussions.
PLDP decisions may be made by a majority of the core members (other than the senior manager), or failing such agreement by majority, the PLDP chair.
The PLDP’s specific tasks will include:
considering information presented to them in response to referrals from the PSG or urgent referrals from the responsible officer or medical director which have bypassed the PSG
- agreeing relevant and appropriate actions in the interests of patient and staff safety, and communicating their reasoning
- ensuring that actions are taken in line with the relevant regulations and NHS England’s policies and procedures
- providing a formal route for the consideration of applications to join the performers list in relation to conditional inclusions and deferred or refused applications
Performance list matters
Performance list matters for England are set out in The National Health Service (Performers Lists) (England) Regulations 2013. This section outlines some of the key elements of the performance list decision making process.
Applications for admission:
An application for admission may be refused on the following main grounds:
if after having considered the documents and information submitted, the relevant decision making body (the DMB) considers the practitioner to be unsuitable
- unsatisfactory references have been received
- the DMB reasonably considers that including the practitioner on the list would prejudice the efficiency of the services performed by the other practitioners on the list
The DMB must, in certain instances, refuse an application for admission. These include:
- where the practitioner does not have sufficient knowledge of the English language
- where the practitioner has not satisfactorily demonstrated to the DMB that he/she intends to perform the services currently performed by the other practitioners on the list
Once the DMB has made a decision on an application, it must notify the practitioner within seven days (including communicating the reasons for the decision and notifying the practitioner of their right of appeal).
As an alternative to refusing the application, the DMB may choose to defer its decision or approve the application on a conditional basis.
The regulations set out the specific instances in which the DMB may undertake a deferral. These include the following:
the practitioner is subject to ongoing criminal proceedings in the UK or elsewhere and the practitioner would likely be removed from a performers list if convicted
- the practitioner is currently suspended from another performers list
The DMB may only defer a decision until the outcome of the proceedings or investigations are known or the relevant suspension expires (as applicable).
The DMB may only approve a conditional inclusion if that route is appropriate for the purpose of:
preventing prejudice to the efficiency of services performed by those already on the list
- preventing fraud
The DMB must put a practitioner on notice if it is considering this route and must give the practitioner the opportunity to make their own representations to the DMB within twenty eight days or put their case forward in an oral hearing (to be held within twenty eight days).
The DMB must not suspend a practitioner unless it is satisfied that suspension is necessary for the protection of members of the public or is otherwise in the public interest. If the DMB is satisfied of such, it may suspend the practitioner on certain specified grounds including:
pending a final decision as to whether the practitioner is to be removed from the list or whether the practitioner is to be included on a conditional basis
- pending the outcome of an outstanding criminal or regulatory investigation
- pending an appeal under the regulations
The DMB must put a practitioner on notice if it considering this route and must, prior to making a decision on suspension, give the practitioner the opportunity to put their case forward in an oral hearing before the DMB. The sole exception to this general requirement for notice is where the DMB considers that an immediate suspension is necessary for matters of public protection or public interest. In such instances, a separate notice regime applies as set out in the regulations.
The permissible period of suspension will vary depending on which of the specified grounds applies. Generally speaking however, the period of suspension should not exceed six months. The DMB may revoke a suspension at any time.
It is important to keep in mind that suspension must not be used as a disciplinary action. It is merely a neutral act and should reflect the fact that the DMB has not arrived at a conclusive decision in relation to the practitioner’s status. Accordingly, practitioners must continue to be remunerated during the period of suspension (based on determinations by the Secretary of State for Health and prevailing entitlements).
Removal from the list:
The DMB may remove a practitioner from a performers list in certain specified instances, including:
where the practitioner has been involved in fraud in relation to a health scheme
- where the DMB considers the practitioner to be unsuitable for inclusion in that list
- where the practitioner’s continuing inclusion in that list would be prejudicial to the efficiency of the services performed by the other practitioners on that list
- where the practitioner cannot demonstrate that they have, in the preceding twelve month period, performed the services performed by the other practitioners on that list.
The regulations specify the factors which the DMB must take into account when considering the grounds for removal referred to above.
The DMB must remove a practitioner from a performers list if the practitioner has:
received a murder conviction in the UK or has, in respect of crimes committed after a specified date, been convicted of a criminal offence in the UK and sentenced to prison for a period exceeding six months
- been nationally disqualified from, or is no longer a member of, their relevant professional body
The DMB must put the practitioner on notice if it is considering removal. The notice must include any allegations against the performer, the actions and grounds being considered by the DMB and an opportunity for the practitioner to make their own representations to the DMB within twenty eight days or put their case forward in an oral hearing (to be held within twenty eight days).
Practitioners may request a review of the DMB’s decision to impose a conditional inclusion, suspension or removal on the basis of failure to comply with pre-existing conditions. Any such request must be in writing and must not be any earlier than:
three months after the DMB’s decision
- six months after the decision of any previous review
A practitioner may, subject to certain specified exceptions set out in the regulations, appeal the DMB’s decision:
not to approve that practitioner’s application for inclusion on a performers list
- to approve that practitioner’s application on a conditional basis
- to remove that practitioner from a performers list
A practitioner may also seek a review of any decisions made under appeal.
How Bevan Brittan can assist:
PSGs, PLDPs and any other DMBs may wish to seek legal advice in exercising their decision making functions or in instances where performers refuse to co-operate with the recommended course of action. Access to appropriate legal advice is particularly important for PLDPs and other DMBs in order to minimise the risk of decisions subsequently being challenged. Each area team should therefore carefully consider the most appropriate means of structuring legal advice to those bodies – for example in the form of a legally qualified lay chair or a legal clerk that attends PLDP meetings.
Bevan Brittan has an expert team of solicitors with a well established reputation for advising health sector clients on list management matters. We can support you throughout the process, including advising options, tactics, evidence gathering, case management, enforcement of decisions, appeals, etc.
We can also provide training and development support to those involved in list management.