Personal or Professional Misconduct? A shrinking role for MHPS
The Court of Appeal’s recent decision in the case of Idu v East Suffolk and North Essex NHS Foundation Trust addressed the categorisation of conduct as either personal or professional conduct for the purposes of the NHS Disciplinary policy “Maintaining High Professional Standards in the Modern NHS” (MHPS). Doctors and hospital dentists should be aware that MHPS affords potentially important procedural protections when investigations relate to conduct involving the exercise of medical skills.
The appeal centred on whether Dr Idu was entitled to have had an independent medically qualified person at their NHS Disciplinary Panel as required by MHPS where allegations involve ‘professional conduct’. The Court concluded that the fact that Dr Idu was a doctor was no more than circumstantial, as the allegations to be considered concerned Dr Idu’s interaction with colleagues and Trust management.
Whilst conduct by doctors in the course of their treatment of patients is the paradigm case of professional conduct, an association between conduct and the doctor’s professional duties is not determinative of the question of categorisation. Rather, categorisation calls for consideration of whether the conduct at issue involved the exercise of medical skills such as to require the experience or expertise of an independent medical professional in resolving contested allegations.
The decision will undoubtedly serve as a welcome authority for employers to deploy in resisting the characterisation of disputed conduct as ‘professional conduct’. However, employers must remember that they do not have a free hand in categorising allegations. The Court of Appeal has confirmed that where the categorisation of conduct as personal conduct is challenged, the decision as to the correctness of the categorisation is to be made by the Court exercising its own judgment.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.