Doctors' discipline needs an overhaul

Sometimes you write an article unsure of how it will be received. This one will be unpopular with some but needed to be written and I hope I have approached it with the right tone.

Let me be clear. Most, in fact the vast majority, of doctors are hard working, skilled, dedicated, capable and extremely effective.

But for many reasons, not all of them reach such high standards all of the time. If we don’t manage the minority who cause concern well, we do a disservice to the majority and risk undermining public confidence.

Since 2005, the NHS has had a pretty universal approach for managing issues around doctors’ capability and conduct − Maintaining High Professional Standards in the Modern NHS.

Unintended consequences

The creation of Maintaining High Professional Standards in 2005 was welcome and overdue. We needed to speed up and simplify procedures and reduce the amount of time doctors spent suspended on full pay. At the time, a number of doctors had been suspended for months and in some cases years. Maintaining High Professional Standards also highlighted the work of the National Clinical Assessment Service.

‘Are employers and doctors referring to the GMC rather than trying to deal with concerns locally?’

The procedure has succeeded in reducing the number of doctors suspended for lengthy periods. But this is only one indicator of an effective process and there have been a number of unintended consequences.

It is clear to me, talking to employers, that despite the best intentions that went into its development, Maintaining High Professional Standards is now failing to meet the needs of patients, doctors and employers.

Complex problems

The problems are multifaceted. It was always a complex procedure − the result of negotiation − but the passage of time and increasing amounts of case law have made it more complex. Confidence in the procedure is failing fast.

According to the ACAS, a disciplinary and capability procedure should be fair and transparent, using rules and procedures that are specific, clear and used promptly and consistently. I’m not sure Maintaining High Professional Standards now meets that test.

Seven years on, the policy is now essentially a complex legal process with employers and trade unions effectively handing over the management of conduct and capability to lawyers. This can’t be right or healthy for an effective employment relationship. There are also worrying concerns and evidence that people are lacking confidence. For example:

Case law, judgements and tribunals mean Maintaining High Professional Standards, including the role of the National Clinical Assessment Service within it, has evolved to fit the findings of the courts rather than to meet the needs of doctors, patients and employers. As a result, employers often feel they are working with the judge looking over their shoulder, concentrating on complex legal processes often at the expense of what is best for doctors and patients.

Maintaining standards is crucial. The current legally heavy process does doctors, patients and employers no favours

The number of referrals to the General Medical Council is increasing, with a greater percentage of doctors facing investigation than the percentage of, say, nurses referred to the Nursing and Midwifery Council. I’m sure the reasons are manifold, but is this also a sign that employers and doctors are referring to the GMC rather than trying to deal with concerns locally?

The number of black and minority ethnic/overseas trained doctors referred to the National Clinical Assessment Service is over-represented. What does this do for confidence?

Revalidation and remediation

No one likes or enjoys using the capability process but it is an essential part of ensuring the quality of patient care and we all need confidence in it. Employers seem to be able to manage the process of discipline and capability fairly well for other staff and certainly in a way much closer to the ACAS definition.

They use fair protocols, a right to trade union representation, natural justice and the right of appeal, as well as the appropriate involvement of lawyers if there is a tribunal case. It’s always challenging, never easy, but most participants have confidence in that approach and those procedures.

Maintaining standards is crucial. If we get this wrong the consequences for patients can be tragic. The current legally heavy process does doctors, patients and employers no favours, based as it is on a contentious legal approach.

Revalidation and remediation will serve as much more than a capability test in future and they will shine a light on the need to change and improve. In addition, changes to the National Clinical Assessment Service mean we should revisit Maintaining High Professional Standards, otherwise we continue to fail patients, doctors and those who employ them.

Dean Royles is director of NHS Employers

This article was amended on 13 November 2012. It originally said the National Clinical Assessment Service “will no longer be a ‘free’ service from April 2013”. NCAS will continue to offer a free service to the NHS in 2013-14; but it has been asked by ministers to prepare for raising some of its income through self-funding in 2014-15. It intends to continue providing all of its present services to the NHS for free for the foreseeable future.