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  • Roger Kline

A New Year’s Resolution on NHS disciplinary action

Not a week goes by without my hearing of NHS disciplinary proceedings that are either unnecessary or incompetent and sometimes apparently vindictive.

Why does this matter?

Firstly, and most importantly, such disciplinary proceedings are bad for patient care. They are likely to focus on blame not learning because they seem more interested in #whodunit rather than #whatcanwelearntopreventarecurrence.

Secondly, unnecessary, incompetent or vindictive disciplinary proceedings will make it less likely that staff will raise concerns or admit mistakes, for fear of the potential consequences.

Thirdly, the decision to have an investigation, the investigatory process, and any disciplinary hearing run the risk of bias. The bias might make it more likely that Black and Minority Ethnic staff in particular will enter the disciplinary process (as the data confirms). Bias might make the investigatory process subject to stereotype bias (people like “the suspect” are more likely to have done something wrong), to confirmation bias (I think “the suspect” is guilty so I’ll look for evidence that confirms this view and ignore evidence to the contrary) and so on. Or the disciplinary process may be framed to “get” someone – as the recent case of nurse Michelle Russell appears to have been.

Fourthly, unnecessary, incompetent or vindictive disciplinary cases cost the NHS a lot of money. No reliable estimates exist of the cost of NHS disciplinary cases though one sense of the range might be gauged from the estimate by Duncan Lewis and myself that the average cost of an NHS bullying case was about £42,000, excluding any legal advice and costs. . This figure also excluded the cost of associated redundancy payments, compromise agreement settlements, the cost of retraining replacement staff, cover during sickness absence and suspensions and the considerable associated costs of referrals to professional regulators. That figure takes no account of the considerable cost to employees’ health and well-being and their future careers. The most recent data I have seen (2016) suggests about 16,000 disciplinary investigations were commenced in NHS Trusts in England so the total real cost was almost certainly tens of millions of pounds.

So two good documents on disciplinary action from NHS Improvement (which has not always been a shining past example of best practice disciplinary investigations and proceedings) deserve more attention.

One of these documents should be pinned to the wall of every manager’s office, in all HR offices and to the noticeboard of every trade union in every NHS employer. It should be referred to the moment any organisation is considering a disciplinary investigation.

It was a letter dated 24 May 2019 to all NHS Trusts from Dido Harding, Chair of NHS Improvement, to all NHS trust and NHS foundation trust chairs and chief executives. The letter summarises “the outcomes of an important piece of work recently undertaken in response to a very tragic event that occurred at a London NHS trust three years ago. In late 2015, Amin Abdullah was the subject of an investigation and disciplinary procedure. The protracted procedure culminated in Amin’s summary dismissal on the grounds of gross misconduct. Tragically, in February 2016 just prior to an arranged appeal hearing, Amin took his own life.”

It explains NHSi had commissioned analysis which highlighted several key themes associated with that case which found shortcomings “which were also common to other historical cases considered. Principal among these were: poor framing of concerns and allegations; inconsistency in the fair and effective application of local policies and procedures; lack of adherence to best practice guidance; variation in the quality of investigations; shortcomings in the management of conflicts of interest; insufficient consideration and support of the health and well-being of individuals; and an over-reliance on the immediate application of formal procedures, rather than consideration of alternative responses to concerns.”

Dido Harding’s letter asks with respect to all disciplinary cases that all NHS Trusts review the following questions (and, where necessary, take corrective action in response):

  • Is there sufficient understanding of the issues or concerns, and the circumstances relating to them, to justify the initiation of formal action?

  • Considering the circumstances, in the eyes of your organisation and others external to it, would the application of a formal procedure represent a proportionate and justifiable response (i.e. have other potential responses and remedies, short of formal intervention, been fully assessed before being discounted)?

  • If formal action is being or has been taken, how will appropriate resources be allocated and maintained to ensure it is conducted fairly and efficiently; how are you ensuring that independence and objectivity is?

  • What will be the likely impact on the health and wellbeing of the individual(s) concerned and on their respective teams and services, and what immediate and ongoing direct support will be provided to them? Further, how will you ensure the dignity of the individual(s) is respected at all times and in all communications, and that your duty of care is not compromised in any way, at any stage?

  • For any current case that is concluding, where it is possible that a sanction will be applied, are similar questions being considered?

In a blog at the time I highlighted an additional question that could be summarised as follows:

·What steps have been taken in the decision to commence an investigation, the investigation itself and any subsequent proceedings, to minimise bias (including in respect of BME staff in particular) was present.

Dido Harding’s letter ends by setting out more detailed principles, one of which is about Board-level oversight. She writes

Mechanisms should be established by which comprehensive data relating to investigation and disciplinary procedures is collated, recorded, and regularly and openly reported at board level. Associated data collation and reporting should include, for example: numbers of procedures; reasons for those procedures; adherence to process; justification for any suspensions/exclusions; decision-making relating to outcomes; impact on patient care and employees; and lessons learnt”.

On November 4, 2019 Prerana Issar, NHS Chief People Officer wrote to all Healthcare Professional Bodies & Regulatory Bodies emphasizing the importance of Dido Harding’s May 2019 letter and the associated detailed advice and asking that

Healthcare regulatory and professional bodies should consider reviewing their respective guidance and standards issued to their registrants, which relate to the management and conduct of local investigations and disciplinary procedures, to ensure fairness, consistency and alignment’.

The May 2019 advice on disciplinary processes should be acted upon now. Whilst some Trusts have acted on it, numerous conversations suggests a significant number have not. It is absolutely clear to me that most staff and many local trade union representatives and local managers are not even aware of the existence of these letters.

So here is a suggested New Year Resolution for every NHS employer, manager and trade union representative.

  • Print the letter and attachment from Dido Harding and make sure it is on every noticeboard where senior managers, HR staff and trade union reps work or meet.

  • Make sure it is sent to every HR business partner, every Board member and every trade union representative

  • Ask to see the “comprehensive data relating to investigation and disciplinary procedures (which) is collated, recorded, and regularly and openly reported at board level.”

  • Ask what steps your employer has taken to implement this letter.

  • An understanding of human factors, just culture and the impact of bias when things “go wrong or “not as expected” is increasing.

The NHSi advice from Dido Haring is another brick in the wall. It is good. Let’s make sure it is acted on.

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