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The Paterson Inquiry – Do doctors face an increased prospect of exclusion from work?

“Those who did take action but were then poorly served by those to whom they reported, have themselves been traumatised. Some who should have taken action now live with the guilt.”

This statement from Bishop Graham James in his opening remarks to the Paterson Inquiry report will make for uncomfortable reading for those providers who received concerns about Mr Paterson’s practice but failed to take appropriate action. But the report is also likely to have consequences in future for practitioners involved in disciplinary investigations by their employing Trusts. These are governed by the national framework Maintaining High Professional Standards in the Modern NHS (MHPS) in NHS Trusts or a similar local policy in Foundation Trusts.

The report has identified failures by Heart of England Foundation Trust (HEFT) to properly address concerns raised by members of staff. As early as 2003 concerns were raised about Mr Paterson’s clinical competence but no restrictions were imposed on his work at HEFT.  In 2007, when further concerns were raised by a new colleague regarding Mr Paterson’s practice, HEFT embarked upon disciplinary procedures through the HR department, which gave rise to issues of confidentiality. Mr Paterson was stopped from performing certain procedures. Despite an external review of his practice – which noted that Mr Paterson’s technique was “rushed” – the remainder of his practice continued unrestricted until 2011. Many were seriously wounded by his criminal acts in that time.

The clear lesson for healthcare providers arising from the inquiry is the need to take concerns raised by healthcare professionals seriously and act upon them. One of the reports key recommendations is that:

“… when a hospital investigates a healthcare professional’s behaviour, including the use of an HR process, any perceived risk to patient safety should result in the suspension of that healthcare professional. If the healthcare professional also works at another provider, any concerns about them should be communicated to that provider”.

Notification of other providers is already a requirement under MHPS. However the recommendation that practitioners should be suspended in the presence of any perceived risk to patient safety  conflicts directly with the provisions in MHPS which govern exclusion of practitioners and restrictions on their work.

MHPS

Under MHPS the purpose of exclusion is to protect the interests of patients or other staff. MHPS deliberately avoids the use of the term suspension, and describes exclusion as a “neutral act” (though the idea it is in fact neutral has been dismissed by the courts and indeed by the Paterson report itself).

MHPS makes clear that exclusion from work is expressly “reserved for only the most exceptional circumstances”, to protect the interests of patients or other staff and/or to assist the investigative process when there is a clear risk that the practitioner’s presence would impede the gathering of evidence.

MHPS goes on to state that “It is imperative that exclusion from work is not misused or seen as the only course of action that could be taken. The degree of action must depend on the nature and seriousness of the concerns and on the need to protect patients, the practitioner concerned and/or their colleagues”.

These provisions sit uncomfortably with the recommendation in the Paterson report which recommends the bar for excluding a practitioner from work should be very substantially lowered to “any perceived risk to patient safety”. Applied literally, this would lead to the complete suspension (i.e. exclusion) of any practitioner whose clinical competence comes under investigation by their employer even if on the narrowest basis. Such an approach would pay no regard to the general principle of proportionality, or the powers in MHPS to restrict a practitioner from certain duties, stopping short of complete exclusion.

Comment

The goal pursued by this recommendation in the Paterson report is plainly beyond reproach. However, providers and civil servants reviewing the present position in its light will need to approach carefully this specific recommendation given how markedly it differs from the existing provisions and how significant its impact could be on the profession. In considering the recommendation they must not lose sight of the difficult lessons which have been learned from the over use of suspension in the past.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP 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.