It seems a reasonable expectation that NHS Trusts and Foundation Trusts should be able to take quick, effective action where there are serious concerns about the capability or misconduct of medical staff. Confidence in the capability and conduct of our medical staff is essential to the NHS’s success.
Surprisingly, however, any senior NHS HR professional will tell you that the section of the NHS workforce where poor capability or misconduct is least well addressed is amongst “doctors and dentists”. Why is that? Well, there are a few cultural reasons, but the main impediment is the procedure known as Maintaining High Professional Standards; or “MHPS”.
What is MHPS and what is wrong with it?
MHPS is a calamitous mess of a document, collectively negotiated between the Department of Health and the BMA in 2003 (a bountiful year for controversial NHS workforce collective agreements). It is the “framework” procedure which all NHS Trusts are required, and Foundation Trusts strongly encouraged, to use for serious disciplinary or capability concerns about medical staff.
To be an effective tool for busy managers, an employee relations procedure should not exceed 6 or 7 succinct pages. It should be clear, logical and accessible, encouraging frequent use and quick, early corrective or conclusive action.
MHPS, at 59 pages, is a bloated mixture of inconsistent policy verbiage and labyrinthine procedure. It seems designed to promote High Court debate … and so it often does. There is a devastating trail of case-law left by MHPS, each case involving a doctor or dentist and their employer becoming miserably entrenched in MHPS for years before landing in the courts.
Is it just a problem for employers?
No sane manager wants to touch MHPS, let alone use it frequently or to intervene early in borderline bad practice. It is well known that any attempt to use MHPS risks years of disputes and litigation. Instead, desperate Medical Directors often resort to risky workarounds – trumping up tenuous “breakdown in working relationships” dismissals, or negotiating unwise settlements behind the bike sheds which unravel later.
MHPS is also bad for medical staff individually and as a profession. In individual cases, issues that could have been resolved early are left to fester and do irrevocable damage to the employment relationship. Or, if a brave Medical Director pursues an issue, the convoluted procedure ensures polarisation of positions and, again, irrevocable damage. For the medical profession, MHPS can only cause reputational damage if a few bad eggs are not dealt with effectively, but given grounds to publicise their disputes in noisy litigation.
Some argue that medical staff require greater protection than others, because of the career-ending effects of unfair treatment. I am sceptical about this divisive tendency to place medical professionals on a pedestal, in respect of misconduct or incapability, above others in the NHS workforce. Moreover, undue complexity does nothing for fairness. It discourages early, low-level resolution. If proportionate safeguards are needed, these could easily be included in a more streamlined procedure and limited to cases where dismissal is contemplated.
What are the worst points?
Aside from generic problems with prolixity, complexity and the fact that it is mandatory, the specific problems with MHPS are too numerous to list. Examples include:
- An enormous cast-list of senior officers required, particularly on capability and appeal panels, with multiple external members – This ignores Trusts' available resources or their sovereignty to make workforce decisions.
- A recommendation of dealing with mixed conduct and capability issues via a capability route –This is nonsense. Misconduct is clearly best dealt with through a misconduct route.
- Entitlement to legal representation throughout – No other NHS employees are entitled to this, for good reason. Professional legal representation at this stage means that internal processes are too easily derailed by granular legal argument.
- Unachievable deadlines – Despite extensive procedural demands, MHPS sets timescales that Trusts can very rarely comply with.
Are there any good points?
Not many. The best element is the role of NCAS, the excellent national advisory body. Nonetheless, it was a relief for employers to receive a 2014 High Court ruling confirming that NCAS's capability recommendations are advisory not final.
Be more constructive… what needs to be done?
MHPS needs to be revoked and fundamentally rewritten. In my view, there is no prospect of collectively agreeing a sensible rewrite (which is not to rule out consultation). The interests of staff representatives are too conflicted to agree a streamlined procedure for disciplining and capability managing their members.
The Department of Health or, by delegation, NHS Improvement, should:
- Withdraw from the 2003 MHPS agreement and repeal the 2005 requirements that bind NHS Trusts to use MHPS; and either
- Take the reins and produce a new fit for purpose recommended procedure, following consultation; or
- Have faith in NHS Trusts and Foundation Trusts and release them to produce their own procedures locally.
We should aim for a procedure (with limited policy statements) that is short, consistent but flexible, easy to use and interpret, promotes informal resolution and is proportionate in the resources it requires. This shouldn’t be difficult to achieve. I'd happily offer a first draft...
This article was first published on HSJ.co.uk
If you would like to discuss the content of this article, please contact the author, Alastair Currie.