5. Handling Concerns
5.1
Isolated Minor Concerns
Isolated concerns which fall below the serious threshold (as outlined in section 3.3) should be addressed quickly, before a pattern of adverse behaviour becomes established. Thus, any colleague who observes something which concerns them should communicate their concern to the practitioner involved as soon as possible.
All members of staff, irrespective of seniority, role, grade or professional staff group, should be able to challenge conduct, performance and behaviour which give rise to concern. Staff who feel that they need to challenge a practitioner should do so in a constructive and professional manner. Where staff have reason to feel uncomfortable directly approaching colleagues, they may wish to ask their manager to accompany them or to make the approach.
In a confidential manner, the staff member should state what they have noticed which has led them to open the conversation and should invite the colleague to comment. The practitioner who is challenged should listen, be ready to engage in a dialogue and be prepared to see the problem from the other person’s point of view. The two should discuss what might need to change. They may not necessarily reach agreement.
No formal undertaking needs to be given. It is expected that acknowledging and reflecting on the situation will lead to changes in behaviour.
5.2
Repeated Minor Concerns and One or More Episodes of a Moderate Concern
(stages 2a and 2b)
Where those in regular contact with a practitioner, see a pattern in which behaviour is repeated, and does not appear to change in response to informal feedback, as outlined in 5.1; or where there is an event which appears to border on serious concerns; or where, if unchecked, serious concerns could arise, they will need to involve the Divisional Director. This type of concern must be handled in line with the informal stage of the Company’s Disciplinary Policy and Procedure.
Whilst respecting confidentiality of the practitioner and witnesses, and sharing information on a need-to-know basis with the minimum number of people required, the Divisional Director should seek the advice of the Responsible Officer and Human Resources and:
Identify what immediate response (Stage 2a), if any, is required; Commence initial enquiry (Stage 2b);
Review any facts which exist (from incident reports etc), or which can be rapidly ascertained;
If there is a complainant and/or witness(es), request statements as appropriate; Clarify the evidence they wish to discuss with the practitioner;
Following a review of the information, decide if the concerns can be dealt with through initial enquiry or are sufficiently serious to warrant escalation and rapid progression to full investigation (Stage 2c, section 5.3);
Following a review of the information, establish the risk and consider any amendments to the immediate response, using, if necessary, a risk assessment tool. There is currently no single agreed model used for assessing incident or concerns risk in the UK. NHS England’s “A practical guide for responding to concerns about medical practice” provides guidance on risk assessments;
If proceeding to address a moderate concern, inform the practitioner that the Divisional Director wishes to discuss the concern confidentially but informally;
Offer the practitioner the opportunity to be accompanied by a workplace colleague, who must also be advised of the requirement for confidentiality;
If the practitioner is a doctor in training, inform the following, as appropriate, of the concern and the requirement for a meeting: Director of Talent and Learning, relevant educational supervisor, college tutor, postgraduate dean, lead provider, and/or local education and training board. It is essential that appropriate confidentiality is maintained. Agree whether the matter is more appropriately dealt with via Health Education England training processes or other internal processes and agree support mechanisms for the doctor.
At a meeting with the practitioner, the Divisional Director should:
Explain that the discussion is confidential, but that the outcome of the meeting may need to be shared with senior managers;
Outline the evidence leading to the concern;
Ask the practitioner to think about the evidence presented;
Ascertain the practitioner’s view of the concern;
Decide if the facts are now clear;
Consider whether the concerns may relate to health, conduct or capability and how serious they appear;
Consider whether the matter is of low risk and may be handled through routine governance processes or without further action other than recording it has occurred; If actions are needed, consider whether there is a solution on which both parties can agree (examples include but are not limited to: a referral to Occupational Health, undergoing some easily accessed training, informal mentoring or supervision). The solution may require involvement of external organisations;
In straightforward cases, agree an action plan with the practitioner
Subsequently:
A written action plan, improvement notice or a behavioural contract, as appropriate, will be issued by the Divisional Director, summarising the issues and the agreed outcome and describing how and when the individual’s conduct / performance will be reviewed;
The plan / notice / contract will make clear that any further misconduct may result in formal action;
The notice / contract will remain ‘live’ on the practitioner’s file for 12 months or until the appraisal date, whichever is longer, and will remain on the practitioner’s file thereafter; The Divisional Director will inform the practitioner that the concern and outcome must be discussed at appraisal and a record made on the appraisal output form, as per Provide’s Appraisal Policy. The Divisional Director will inform the Responsible Officer that this request has been made. In turn the Responsible Officer will ensure the matter is discussed at appraisal and, after the appraisal, confirm to the Divisional Director that this had satisfactorily occurred Unless agreed with the practitioner, the content of appraisal discussion will not be shared with the Divisional Director
If the Divisional Director considers that the concern is sufficiently serious or they are unable to resolve the issue with the practitioner, they should adjourn the meeting and escalate, as outlined in 5.3.
5.3 Escalation
Escalation should occur in the following or similar circumstances: Where there is evidence that that the concern could be viewed as a serious concern (as defined in 3.1);
Where the problem appears to be part of a long-standing entrenched pattern of conduct, performance or behaviour; Where it appears likely that a change in working patterns or restrictions may be required; Where it appears likely that some formal remediation may be required; and / or Where it appears likely that there are serious concerns regarding the practitioner’s health
Whilst respecting confidentiality of the practitioner and witnesses, and sharing information on a need to know basis with the minimum number of people required, the Divisional Director or the person to whom the concern is raised, should seek advice from the Responsible Officer and Group Chief People Officer (or their delegate) before agreeing that escalation is required.
If the practitioner is a doctor in training, advice should be sought from the following, as appropriate, as to the requirement for escalation and agreeing next steps: Director of Talent and Learning, relevant educational supervisor, college tutor, postgraduate dean, lead provider, and/or local education and training board. It is essential that appropriate confidentiality is maintained.
Following discussion, as above, concerns which cannot be resolved easily within the directorate, or for a doctor in training through the training structure, should be referred to the Responsible Officer, who will consider whether it should be considered as a serious concern and managed as per the sections below.
5.4 Serious Concerns
Detailed guidance on addressing serious concerns is provided in NHS England’s “NHS England’s “A practical guide for responding to concerns about medical practice” and ‘MHPS’. The company will follow this guidance, which is summarised below.
When a serious concern is presented to the Responsible Officer, they must ascertain the nature of the concern, and appoint a case manager to review; and if necessary, extend the initial enquiry (Stage 2b) into the concern and assemble any evidence which already exists. It may be appropriate for the Responsible Officer to be the case manager.
If the serious concern is with regards to a doctor in training, inform the following, as appropriate: Director of Talent and Learning, relevant educational supervisor, college tutor, postgraduate dean, lead provider, and/or local education and training board It is essential that appropriate confidentiality is maintained.
A decision-making group comprises at least the Responsible Officer and the Group Chief People Officer (or their delegate). On review of the evidence, they should: Identify the nature of the concern; Describe the concern in terms of possible issues of conduct, capability, training, health or work context (these are often inter-related);
Assess the seriousness of the concern, using if necessary, a risk assessment tool There is currently no single agreed model used for assessing incident or concerns risk used in the UK. NHS England’s “A practical guide for responding to concerns about medical practice” provides guidance on risk assessments; Consider whether there should be amendments to the immediate response (Stage 2a), e.g. restrictions to practice or exclusion of the practitioner;
Where appropriate, agree that the case manager, will meet with the practitioner, to explore whether the concern could be resolved without resort to full investigation (i.e. reverting to stage 2b rather than stage 2c);
If such a meeting is to take place, the case manager will inform the practitioner that the meeting is informal but confidential;
The case manager will offer the practitioner the opportunity to be accompanied at the meeting by a workplace colleague or trade union representative, who must also be advised of the requirement for confidentiality;
Consider whether the concerns could be resolved without resort to full investigation, in which case the subsequent actions in section 5.2 are followed;
Consider whether full investigation (stage 2c) is required;
Consider informing and seeking information from external organisations, e.g. other organisations where the practitioner works, as a transfer of information between Responsible Officers
External Advice
The Responsible Officer will consult Practitioner Performance Advice, NHS Resolution (or any successor body), as appropriate, where there are serious concerns and formal disciplinary procedures and/or significant remediation are likely to be required.
If there is a serious concern about an individual practitioner’s fitness to practise, the Responsible Officer should contact the GMC/GDC, where practicable via the local GMC Liaison Officer or direct to the GDC Compliance department.
5.5 Concerns About Health
If there are concerns about the practitioner’s health, the case manager, should refer the practitioner to a consultant Occupational Health physician. There may have been previous referrals, but the purpose of case manager referral is to request specific information which may assist the investigation. This may be to Provide’s Occupational Health service or may, where appropriate and agreed by the Group Chief People Officer (or their delegate), be via an alternative provider of Occupational Health services. Any other relevant organisation where the practitioner works must be informed of the referral.
The principle for dealing with individuals with health problems is that wherever possible, and consistent with reasonable public protection, they should be treated, rehabilitated or re-trained and kept in employment. At all times the practitioner should be supported by the Company and the Occupational Health service.
The Responsible Officer and Group Chief People Officer (or their delegate) should consider what reasonable adjustments can be made to enable the practitioner to continue in employment.
If health concerns are raised regarding a doctor in training, the matter should be handled as above, but additionally the Director of Talent and Learning, relevant educational supervisor, college tutor, postgraduate dean, lead provider, and/or local education and training board should be informed and consulted, as appropriate.
6. Resolving Serious Concerns
6.1 Without Full Investigation or Disciplinary Procedures
If the initial enquiry (Stage 2b) shows that there is no case to answer, the Responsible Officer should inform both the practitioner and the professional who raised the concern (where appropriate) and explain, whilst respecting confidentiality, why no action is considered necessary.
If there is a case to answer and if there is no possibility of gross misconduct, if the relevant facts, risks and conclusions are agreed upon with the practitioner, and if it is likely that agreement can be reached with the practitioner on actions for a realistic remediation proposal (Stage 3), then the remediation proposal must be put to the practitioner by the Responsible Officer with the Group Chief People Officer (or their delegate).
Examples of remediation proposals include, but are not limited to:
• Assessment of the practitioner’s practice by PPAS, followed by appropriate retraining, which may involve an external organisation;
• Assessment of the practitioner’s professional conduct (e.g. by bespoke 360º) followed by appropriate support and mentoring to change unhelpful behaviours;
• Referral to Occupational Health followed by consideration of the advice from the Occupational Health consultant;
• Referral to internal or external support and mentoring services;
• Alterations in the work environment; and/or
• A behavioural contract.
If the practitioner agrees to the facts and to the remediation proposal, a written agreement will be drawn up by the case manager, with support from the People Partnering team, outlining the concerns which led to the remediation proposal, the nature of the remediation package, the resources allocated to it, the timescale, the expected outcome and the arrangements for review.
The practitioner and the case manager will both sign this agreement and keep a file copy. This agreement does not form part of a disciplinary process, however, failure to comply with the agreement may be considered in any subsequent full investigation and/or disciplinary process.
Whilst respecting the practitioner’s confidentiality and sharing information on a need-to-know basis with the minimum number of people required, the case manager will share the remediation proposal with the relevant Divisional Director, Responsible Officer and Group Chief People Officer (or their delegate).
If the practitioner is a doctor in training, advice should be sought as appropriate, from the Director of Talent and Learning, relevant educational supervisor, college tutor, postgraduate dean, lead provider, and/or local education and training board, as to the nature and content of the remediation proposal. It is essential that appropriate confidentiality is maintained.
If the practitioner does not agree to remediation proposals, a full investigation (Stage 2c) must be commissioned, as below.
6.2 Full Investigation (stage 2c)
A full investigation may not be required if the practitioner agrees to the facts and to the remediation proposal.
Other circumstances in which a formal investigation may not be necessary, are where the case is already being investigated by another agency or needs to be referred to an outside body such as the Police or NHS Counter Fraud. In such cases, the Responsible Officer and Group Chief People Officer (or their delegate) may decide to run an internal investigation in parallel with the external process or may decide to await the outcome of the external process before deciding how, or whether, to proceed. The decision in each case will be determined by the circumstances of the case in question.
There may be occasions when confirmed or suspected ill-health may make an investigation inappropriate, but ill health alone is not a reason to suspend or delay an investigation. All reasonable efforts should be made to assist the practitioner to engage with the investigation, but in some circumstances the investigation will proceed without the input of the practitioner.
A full investigation should be commissioned when any of the following are met (the list is not exhaustive):
• there are allegations of gross misconduct, including bullying and harassment;
• fitness to practise is in doubt;
• the practitioner does not agree to the facts; and/or
• the practitioner does not accept or does not comply with a remediation package.
During the planning of the investigation, the case manager and the Group Chief People Officer (or their delegate) may discuss relevant issues with the GMC / GDC. Discussion with Practitioner Performance Advice, NHS Resolution is recommended.
Full investigations must comply with guidance outlined in ‘MHPS’. The essential features are:
• All decisions to proceed to formal investigation are registered with the Group Chief Executive and Chair, who will ensure that a case manager is appointed along with a Non-Executive Director to oversee the investigation. It may be appropriate for the Responsible Officer to be the case manager.
• The Responsible Officer and the Group Chief People Officer (or their delegate) will agree Terms of Reference with the case manager.
• The investigation will proceed to address these specific issues
• A suitable, non-conflicted, case investigator will be appointed by the case manager and issued with a copy of the commissioning letter that was given to the employee, detailing the terms of reference, allegations and any relevant background information
The role of the case investigator is to:
• Work within the agreed terms of reference;
• Discuss any proposed amendments to the terms of reference with the case manager;
• Collect and identify relevant evidence;
• Ensure appropriate senior clinical input where there is concern about clinical judgement or professional practice;
• Weigh that evidence;
• Make findings of fact in a written report;
• Keep the practitioner and the case manager informed about the progress of the investigation;
The case investigator does not make decisions on what action should be taken.
The role of the case manager is to:
• Oversee an efficient investigation;
• Liaise between the practitioner, the case investigator and others involved;
• Maintain confidentiality and ensure proper documentation of the process;
• Ensure that the practitioner and any witnesses have appropriate support;
• Make judgments on the basis of the report from the case investigator and other relevant information;
• Do so without conflict of interest in a fair and transparent manner;
• Determine next steps;
• Present the management case to any subsequent panel hearing;
• Liaise as necessary with Practitioner Performance Advice, NHS Resolution or other external agencies.
The role of the Non-Executive Director is to ensure that the investigation is completed in a fair and timely fashion, with no undue delays.
7. Considerations During and After the Full Investigation
7.1
Fairness
The Responsible Officer, case manager and case investigator must always consider fairness. The practitioner is entitled to know what is said about them and to comment on factual evidence before any decision is made by a panel. The decision-makers should be impartial, must ensure that equality and diversity are considered, and must avoid any conflict of interest or appearance of bias.
Those involved in making the decision to investigate and those involved in the investigation itself, should not be involved in decision-making at any subsequent disciplinary hearings or panels.
7.2 Support and Protection for Those Involved
Provide and the case manager must ensure that those involved are supported and protected. This includes patients and those raising concerns as well as the practitioner involved.
Patients and/or families who have made complaints need to receive information about the Company’s procedures and the way the complaint is being addressed. There may be circumstances in which a ‘look back’ exercise is needed to find out if other patients have been affected. These look back patients will need information about the nature of the concern. The information released to patients should be discussed with the practitioner concerned, who should be appropriately protected.
Depending on the level of risk to patient safety, the Responsible Officer, together with the case manager, will consider whether the practitioner should be excluded from work, or undergo restricted or supervised practice during the investigation and/or any subsequent processes. Potential exclusion should be discussed with Practitioner Performance Advice, NHS Resolution and/or the GMC/GDC. ‘Maintaining High Professional Standards in the Modern NHS’ contains specific detailed advice about the management of restrictions and exclusions, and this must be followed.
Wherever possible, the case manager must meet the practitioner being investigated within two working days of the decision to proceed to investigation, and explain:
• The terms of reference;
• The processes involved;
• Timescales (expectations dependent on number of witnesses);
• Entitlement and requirement for confidentiality (by all parties);
• Support available via the Employee Assistance Programme and any other relevant organisations;
• That the practitioner must avoid influencing witnesses or the individual(s) who made the allegations;
• That any media enquiries must be forwarded to the Company’s PR and Media team, for their response.
The practitioner has a right to be accompanied at any stage by a friend, colleague, accredited trade union representative or accredited representative of a medical defence organisation.
7.3 Documentation
The case manager and case investigator should, as appropriate, ensure that:
• The practitioner is informed in writing of the specific allegations and/or concerns and the name of the case investigator;
• All contact with the practitioner during the investigation is noted in writing;
• The practitioner is informed in writing of the list of witnesses that the case investigator intends to either request statements from or interview as part of the formal investigation process;
• The practitioner is given the opportunity to view any correspondence relating to the case, such as letters detailing concerns, where these can be shared without breaching confidentiality. Where these cannot be shared in full, suitably redacted or summarised documents will be provided;
• Notes are taken at meetings with the practitioner and any witnesses
• Notes are circulated to all interviewed, to confirm accuracy. If the notes are disputed both versions will be added to the final report;
• The rationale for all findings and decisions is clearly recorded;
• The case investigator should ensure that there is a clear written record of the investigation, with findings of fact made clear in a formal written report for the case manager.
8. Outcomes
8.1 On Completion of the Investigation
The case manager should review the case investigator’s report seeking advice where appropriate from the Group Chief Executive, Responsible Officer, Divisional Director and the Group Chief People Officer (or their delegate), and should make a decision on whether:
• No further action is needed;
• There is a case of misconduct that should be put to a conduct hearing;
• There are concerns about health to be considered by the Company’s Occupational Health service;
8.2
8.3
• There are concerns about clinical performance, including behaviour falling short of likely gross misconduct, which should be explored by or with Practitioner Performance Advice, NHS Resolution;
• Restriction on practice or exclusion from work needs to be considered;
• There are serious concerns on fitness to practise which should be referred to the GMC/GDC;
• There are serious concerns which should be referred to other external agencies such as police or NHS counter fraud; and/or
• There are intractable capability problems, with no realistic chance of success of a remediation plan, or the practitioner declines the remediation plan, and the matter should be put before a capability panel.
The case manager must inform the practitioner of the decisions made and the reasons for them, verbally where possible, and in writing.
If there is no possibility of gross misconduct, and if it is likely that agreement can be reached with the practitioner on actions for a realistic remediation proposal (as per 6.1), then the remediation proposal must be put to the practitioner by the case manager with the Group Chief People Officer (or their delegate);
The case manager should inform the Group Chief Executive, Responsible Officer and the Group Chief People Officer (or their delegate) of the decision.
The Responsible Officer must arrange transfer of information to other Responsible Officers, as appropriate.
Conduct Hearings
In accordance with ‘Maintaining High Professional Standards in the Modern NHS’, misconduct involving practitioners will be dealt with by the same procedures as misconduct involving other staff. In Provide’s case this would be in line with the Disciplinary Policy and Procedure, or any subsequent policy that may replace all or part of this.
In cases proceeding to a disciplinary hearing, for reasons related to professional conduct, the panel should include, in addition to those members specified in the relevant company policy, a member who is medically qualified and is not currently employed by the company.
The decisions of the hearing will be communicated in accordance with the Disciplinary Policy and Procedure, or any subsequent policy that may replace this. Practitioners will have the right of appeal as laid down in the above policy and the Company’s appeals policy.
Capability Issues
These arise where, following investigation, there is a finding that a practitioner has failed to deliver an adequate standard of care through lack of knowledge, ability, application or consistently poor performance, including behavioural.
Capability concerns must be discussed with Practitioner Performance Advice, NHS Resolution before the matter can be considered at a capability hearing. In most cases, ongoing assessment and support will be used for remediation.
In the case of doctors in training, such matters should be considered initially as a training issue and dealt with in liaison with the Director of Talent and Learning, relevant educational supervisor, college tutor, postgraduate dean, lead provider, and/or local education and training board, as appropriate.
Where counselling, and retraining cannot resolve the issue or are unlikely to resolve the issue (having taken advice of Practitioner Performance Advice, NHS Resolution), or the practitioner declines the remediation plan, capability procedures as described in ‘Maintaining High Professional Standards in the Modern NHS’ can be instigated
The company must ensure that all necessary arrangements to handle concerns about a practitioner’s health are in place and also that it is not acting in a manner which results in discrimination on the grounds of any protected characteristic.
The procedures for capability hearings are set out in detail in ‘Maintaining High Professional Standards in the Modern NHS’.
9. Doctors for Whom the Company is Not the Primary Employer
For a doctor who has left or subsequently leaves the Company, or was placed at Provide via Workforce Solutions, a locum agency or other placement agreement, concerns arising during a doctor’s employment/placement at the company will be handled by the company and the process completed by the company, unless formal arrangements are made to handover the process to the current employer.
For repeated minor concerns or for one or more episodes of moderate concerns, the above process should be followed as it would be for a Provide employee. However, the doctor must be made aware that any improvement notice or behavioural contract will be shared with the current employing organisation, trust or university.
In relation to more serious concerns the employing organisation / trust / university will be notified of the allegations at the earliest opportunity. Where Provide holds the responsibility for carrying out the investigation and/or hearing, the employing organisation / trust / university will be kept up-to-date with the progress of the investigation and may be asked for additional relevant information.
Where Provide is responsible for the investigation but not for any subsequent hearing, once completed the investigation report will be passed to the relevant employing organisation / trust / university for them to consider what, if any, further action should be taken.
Where the responsibility for both investigation and hearing rest with the employing organisation / trust / university, Provide will co-operate with the employer to ensure that the investigation and/or hearing are completed as quickly as possible.
Consideration will be given by the Responsible Officer as to whether the practitioner’s working arrangements with Provide should be reviewed on the
basis of the report alone or following the outcome of any hearing or disciplinary action by the employing organisation / trust / university
10. Monitoring
10.1 This policy will be reviewed at least every three years in line with the Policy for the Management of Procedural Documents and more frequently in line with any changes in the legislation or the national guidelines
Reviews will be undertaken by the Responsible Officer and monitoring will be conducted in respect of outcomes.
STRICTLY PRIVATE & CONFIDENTIAL
Investigation report
In line with Provide’s policy for handling concerns about the conduct and performance of medical and dental employees
Completed by [Name]
Case Investigator [Date]
1 Investigation:
INVESTIGATION
Case manager
Case investigator
HR representative
Completion date
2 Employee under investigation:
Name
Job title
Start date
Division
Department
GMC Number
Employee support
Part 1 – Background information
1.1 Employee background (employee under investigation)
1.2 Workplace background
1.3 Background
Part 2 – Concerns
3.1 Investigatory Steps
Role in investigation
Employee under investigation witnesses
Name
The appendices list sets out each witness statement, plus any other documentation considered as part of this investigation.
3.2 Appendices
