How Lawyers Can Help Medical Professionals facing MHPS Investigations

What is MHPS?

MHPS (Maintaining High Professional Standards) is a framework all Northern Irish Trusts must use when formally investigating serious disciplinary or capability concerns about medical staff.

When is MHPS used?

The formal process under the MHPS is intended for situations where there are serious allegations or concerns. Despite this, and the fact that the Policy clearly provides that less serious issues should be addressed informally, it is not uncommon for the formal MHPS procedure to be used widely by the NI Trusts, including for more minor issues.

What does the formal MHPS process entail?

The formal MHPS process provides for appointment of a Case Manager and Case Investigator to facilitate a formal investigation into the issues/concerns/allegations. The Policy provides that the investigation should complete within 4 weeks and thereafter a report should be issued to the Case Manager within 5 days to enable the Case Manager to make a decision on whether:

• There is a case of misconduct that should be put to a professional conduct panel;
• There are concerns regarding health that should be considered by the Trust’s occupational health service;
• There are concerns about performance that should be explored by Practitioner Performance Advice (PPA) – any discussions will be monitored with the Practitioner;
• Restriction on practice or exclusion from work should be considered;
• There are serious concerns that should be reported to the GMC or GDC;
• There are intractable problems that should be put before a capability panel;
• No further action is needed.

What can go wrong?

The Policy itself is exceptionally long and vague in a lot of areas. As a result, there does not appear to be a consistent approach to these investigations by Trusts (even within the same Trust). Further, the timescale to complete investigations within 4 weeks is rarely ever met. The processes often go on for long periods of time, in some instances for years.

In some cases during investigation, the employee is subjected to interim suspension or restrictions on their practice area and can experience considerable stress during a long-running unresolved formal investigation into their conduct or capability.

In many cases, interim suspension or restrictions are not justified or reasonable, however the employee is often reluctant to challenge this for fear of a negative outcome in the MHPS investigation or long-term implications for their employment within the relevant Trust.

However, whilst suspension or restrictions may not impact pay, given the implications they can have on the reputation and career development of those affected, there can be significant long-term financial and reputational damage in many cases.

As a result of the nature of the investigations, medical staff are often reluctant or unable to discuss them with other colleagues and often find themselves very isolated.

The death of Nurse Amin Abdulla in 2016

Following a long disciplinary procedure conducted by a London Trust resulting in a Summary Dismissal of him, Amin Abdulla sadly took his own life 2 days before his Appeal Hearing. A subsequent investigation found that the procedure against him was weak and unfair and the evidence did not provide an “honest and complete picture”.

Review by Chair of NHS Improvement in May 2019

Following Mr Abdulla’s death, the Chair issued correspondence in May 2019 entitled ‘Learning lessons to improve our people practices’. This correspondence outlined a number of recommendations for Trusts including;

• Adhering to best practice and ensuring independence and objectivity at every stage;
• Applying a rigorous decision-making methodology;
• Ensuring people are fully trained and competent to carry out their role, and are able to demonstrate the aptitude and competencies;
• Assigning sufficient resources to support the completion of the procedures. Independence should also be considered;
• Decisions relating to the implementation of suspensions or exclusions not to be taken by one person alone, or anyone with a conflict of interest. With the exception of security and/or safety, suspension and/or exclusion should be a measure of last resort that is proportionate, time bound and only applied where there is full justification for doing so. Ongoing suspension and/or exclusion should be subject to appropriate senior-level oversight;
• Safeguarding people’s health and wellbeing, including implementing a communication plan forming part of the Terms of Reference. Communication ought to be timely, comprehensive, unambiguous, sensitive and compassionate; and
• Board-level oversight – comprehensive data relating to investigation and disciplinary procedures should be regularly reported at board level.

Al-Obaidi v Frimley Health NHS Foundation Trust [2018]

Mr Al-Obaidi, a Senior Consultant, had initially been suspended from work for a 4-month period invoked at the outset of the investigation into allegations made against him. After that time he was returned to work but only on a part-time basis and on restricted duties. Whilst at this point the Trust had dismissed the more serious allegations against him, they refused to allow him to return to work full-time.

The Court granted the interim injunction stating the Trust had behaved irrationally. It also stated that restricting his duties had been demeaning and humiliating, affecting his emotional wellbeing.

How has the COVID-19 Pandemic affected MHPS Investigations?

There is no doubt the pandemic has only exacerbated the existing difficulties faced by many medical professionals dealing with these investigations as it has resulted in far more substantial delays in investigations as well as a very significant lack of resources.

What can Cleaver Fulton Rankin do to help?

I have a number of years’ experience advising many medical professionals on participating in Trust investigations and procedures, including MHPS investigations. Whilst having a great deal of knowledge on the Policies and Procedures themselves, I also have a good grasp of all relevant legal remedies available to clients which may include injunctive relief for return to work or to uplift restrictions on practice. Unfortunately, delaying in obtaining legal advice may affect the number of options available to clients or the strength of those options. It is therefore important legal advice is obtained at an early stage wherever possible.

Some clients may elect not to take any formal litigation however, many find that legal assistance provides them significant support and assists in bringing the matter to a conclusion at an earlier stage.

Please contact me in confidence if you think I may be able to assist you.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. If you need any advice in relation to the issues raised above, please do not hesitate to contact our Employment team.

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