In Burn v Alder Hay Childrens’ NHS Hospital the Court of Appeal has given helpful guidance in relation to the documents that a Doctor is entitled to see in order to participate in an investigation conducted in accordance with the Maintaining High Professional Standards framework (MHPS).
MHPS sets out in paragraph 1.16, “The practitioner concerned must be informed in writing by the Case Manager, as soon as it has been decided, that an investigation is to be undertaken, 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 relating to the case together with a list of the people that the Case Investigator will interview. The practitioner must also be afforded the opportunity to put their view of events to the Case Investigator and given the opportunity to be accompanied.”
In Burn, the Doctor contended that, before she was interviewed as part of the MHPS investigation, she was entitled to see “all documents related to the investigation” and this included correspondence with parents of a deceased child and statements collected as part of an earlier Root Cause Analysis (RCA). The Trust refused to disclose some of those documents.
The Court of Appeal decided:
- Viewed overall, the character of paragraph 1.16 is to ensure that a Doctor is afforded certain specific and high-level rights in connection with the investigation. Paragraph 1.16 does not impose a general disclosure obligation (whether or not limited to “relevant” documents). It concerns only correspondence generated by the investigatory process, and creates no obligation to disclose correspondence (let alone other documents) on the basis only that it relates to the matters which are the subject-matter of the investigation.
- The requirement in paragraph 1.16 to provide a list of the people that the Case Investigator will interview does not impose any obligation on the Case Investigator to communicate what other interviewees have said – still less, to provide copies of the Investigator’s notes of those interviews or any statement that may be produced.
- It is unlikely that it was the intention of MHPS that the Case Investigator should be under any obligation to provide the practitioner at this stage of the process with copies of all documents which they have assembled for the purpose of the investigation or generated in the course of it. That would have the potential to seriously encumber and formalise what is otherwise a process whose conduct is explicitly left to their discretion and which is intended to be relatively speedy.
- A Case Investigator will often be obliged, for the purpose of an investigatory interview, to show the practitioner relevant documents to which he or she has access (though not all documents relating to the case). An obvious example is that a practitioner will not normally have a fair opportunity to give their version of events relating to their treatment of a patient without sight of the clinical notes.
- The practitioner must be given the opportunity to put their version of events and this necessarily implies that they must be shown any documents that they fairly need in order to be able to do so. What those documents are will obviously depend on the particular circumstances of the case. This is a fairness-based obligation but this is very different to a general disclosure obligation.
- In Burn, the Doctor could be given a fair opportunity to put her version of events at the investigation stage without seeing either the withheld RCA statements or the correspondence with parents of the deceased child. These documents were not of such a character that it was impossible for the interview to proceed without the Doctor having sight of them.
Requests for the disclosure of documents can cause delay to MHPS investigations. In Burn, the investigation had been delayed for nearly a year. The dispute around the disclosure of documents had involved the Doctor seeking an injunction to restrain the Trust from concluding the investigation until she had been given the opportunity to be interviewed having had sight of all documents related to the investigation.
This is a useful judgement for NHS Trusts to be able to rely upon, to progress MHPS investigations, when presented with requests for documents that might appear to be unnecessary or onerous.