In this webinar presentation on employment issues facing the NHS, Helen looks at the key issues around medical and dental capability hearings, under Maintaining High Professional Standard (MHPS). In particular the options open to employers, and the involvement of NCAS, in the light of the High Court decision in Chakrabarty v Ipswich Hospital NHS Trust.

2. the impact of Chakrabarty v Ipswich Hospital NHS

3. •requirement to refer to NCAS before a hearing
•paragraph 4, part IV…

4. “If the concerns about capability cannot be resolved routinely by management, the matter must be referred to NCAS before the matter can be considered by a capability panel”
Paragraph 4, Part IV

5. Lim v Royal Wolverhampton NHS Trust

6. •employed as a consultant anesthetist since 2003
•November 2007 - serious untoward incident
•Trust contacted NCAS and obtained three expert reports all of which were critical of L

7. •Trust took the view that they didn’t need to refer to NCAS for an assessment prior to a capability hearing on this basis
•L argues that Trust had to refer him to NCAS for an assessment before they could proceed

8. •the High Court held that the Trust could not proceed to a capability hearing about L before it had referred the matter to NCAS for assessment and the NCAS assessment panel had advised that no action plan had a realistic chance of success

9. •the Trust would be in breach of contract if it were to proceed to a capability hearing

10. •Trusts left in limbo - couldn’t proceed to a capability hearing if either
‐NCAS declined to undertake an assessment
‐they did assess but did not conclude no action plan had a realistic chance of success Also put NCAS in a difficult position

11. Chakrabarty v Ipswich Hospital NHS Trust

12. Consultant in Cardiology and General Medicine
Internal investigation in 2004-2005 identified clinical concerns
GMC performance assessment
Trust made another request for an NCAS assessment – declined as wouldn’t add anything to GMC assessment

13. Trust wished to proceed to a capability hearing
Dr Chakrabarty applied for an injunction
NCAS intervened in proceedings to set out their position

14. Mrs Justice Simler - “the only mandatory obligation on a Trust once local action has been ruled out is to refer [our emphasis] the matter to the NCAS for it to consider whether an assessment should be carried out”.

15. decision to proceed to a capability panel only when an NCAS assessment has concluded “the practitioner’s performance is so fundamentally flawed that no educational and/or organisational action plan has a realistic chance of success” was only an example and not a requirement.

16. Injunction was refused and Trust can proceed to a capability hearing

17. Still a requirement to refer the case to NCAS for consideration of an assessment
Examples of where may be declined…

18. There has been a GMC assessment
There have been other expert reports e.g. Royal College which have concluded there are serious concerns
It is practically difficult as doctor excluded for a lengthy period and Trust cannot find placement to undertake an assessment

19. If assessment declined, can now proceed to capability hearing as long as you have enough evidence

20. Can also proceed even if assessment does not conclude that a doctor’s “performance is so fundamentally flawed that no educational and/or organisational action plan has a realistic chance of success”

21. Such a statement is rare in our experience.
Even if an assessment has been carried out and an action plan proposed, only if the Trust agrees with the plan does the Trust need to proceed with it. Otherwise it may proceed to a capability panel.

22. Regional advisers
Assessment reports
Alternatives to full assessments

23. We hope you found in useful.
Please get in touch if you have any questions or wish to discuss the topic we covered further…
e helen.badger@brownejacobson.com
t +44 (0) 121 237 4554