An inquest was recently held into the death of Wendy Potts, a GP who took her own life after being suspended for writing online about her mental health problems. Dr Potts was disciplined after a patient read her account and then proceeded to complain about her fitness to practise. Speaking at her inquest, the coroner openly criticised her NHS employers for having ‘lost sight that Dr Potts was a human being’.
Tragically, this story is not an isolated one. The health minister announced this May that an independent inquiry would be launched into the NHS disciplinary process that preceded the suicide of nurse Amin Abdullah in 2016. But campaigners have said the inquiry should look at the NHS disciplinary process across the board. Dr Potts’ case provides yet more evidence that a wider inquiry is needed.So what is wrong with the NHS disciplinary process? What could be done to improve it? And how could staff be better supported as they go through it?
Not fit for purpose
NHS disciplinary processes, which form a key part of NHS management, are fundamentally flawed in several ways:
Current disciplinary procedures are antiquated and are now not fit for purpose. The constitution of panels is often subject to conscious or unconscious bias. Those who hear an appeal against dismissal are often closely linked to those who authorised the dismissal in the first place.
There are double standards, with one set of policies and procedures that apply to doctors and dentists, and another set of procedures that apply to other NHS staff such as nurses or psychologists. This ‘apartheid’ clearly sows the seeds for justifiable complaints of unfairness.
There is seldom consideration of the particular needs of whistleblowers, particularly those of Black and Minority Ethnic origin, who have been shown statistically to come off worse than their white colleagues in disciplinaries.
Procedures have become damaging to morale and motivation in NHS staff, result in huge legal and other expenses, and have a negative effect on trust and confidence between employers and employees. These flaws have sometimes led to tragic consequences.
The order for the independent inquiry into Amin Abdullah’s case was heralded as a means of learning lessons that can be applied across the NHS. This was in part because the Department of Health had been presented with evidence of 14 other cases where senior and experienced judges had made severe criticisms of NHS disciplinary procedures.
Ideally, this local inquiry should be complemented by a national inquiry that can also address broader issues, such as the need to have a properly funded redeployment scheme for those NHS staff who find themselves unfairly victimised and without a job.
Principles of fairnessFundamental changes to the NHS disciplinary system include having simple principles of fairness for panels and for their decision-making processes. Thus, panels should be constituted according to ‘PIPE’ principles: plurality (more than one decision maker), independence (some members on the panel are external to the employer), panel training to prevent bias, and relevant expertise.
The outcome of hearings should be subject to ‘PRIME’ principles: ensuring that any punishment is proportionate, exploring how remediation could help the individual, carrying out an impact assessment of any punishment, ensuring that mediation is fairly and thoroughly explored where there are issues of an alleged breakdown in relationships, and external, expert assessment of these four principles being fairly and robustly implemented.
Lawyers need to be aware of the two sets of standards, one for doctors and dentists and one for other NHS staff, and to try to ensure that the PIPE and PRIME principles are respected in proceedings. They should also be aware that ACAS guidance is quite vague, and that these proceedings are very stressful and can affect the physical and mental wellbeing of individual NHS staff. They should also be aware that union advice and support is variable, ranging from good to harmful.
Narinder Kapur is visiting professor of neuropsychology at University College London and honorary consultant neuropsychologist at Imperial College NHS Trust