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Performers List reforms – Does interim suspension automatically result in removal from the Perform

The NHS (Performers List)(England) Regulations 2013 (“the Regulations”) came into force on 1 April 2013. They facilitated the major structural reforms which has seen the move from local lists, administered by the PCTs, to a single National List administered by the NHS Commissioning Board (known as NHS England).

Much of the content of the Regulations mirrors what went before. This article focuses on one highly significant difference in the Regulations which represents either a deliberate and troubling change or a drafting error which needs to be addressed as a matter of urgency. The question is whether the Regulations now require a Performer to be removed from the Performers List if he is made the subject of an interim order of suspension by his professional regulator e.g. GMC/GDC.

In keeping with what went before, NHS England has a power to suspend a Performer from the List whilst it awaits the outcome of a regulatory investigation or the decision of a regulatory body affecting the practitioner. That provision is fairly unobjectionable. Suspension is intended to be a neutral act, as it does not involve any adverse findings of fact, and, generally speaking, a Performer who is suspended from the list is entitled to suspension payments during the course of their suspension. Although there is a longstanding anomaly in relation to suspension payments whereby dentists lose their entitlement to Performers List suspension payments if they are made subject to an Interim Order of suspension by the GDC but the same does not apply to doctors.

The old regulations required the removal of a Performer from the List if they were the subject of a substantive order for suspension by a Fitness to Practise Panel of their professional regulator, unless such suspension was imposed on health grounds. However, the way in which that provision has been translated into the Regulations appears to have extended the mandatory requirement to remove a Performer in a highly significant way. The relevant provisions are Regulation 28(1)(b) for Medical Performers and Regulation 35(1)(a) for Dental Performers.

In essence, they state that the NHS Commissioning Board must remove a practitioner from the relevant Performers List where it becomes aware that the Performer’s registration in the statutory register “has been suspended”. The regulation makes no distinction between suspensions imposed on an interim basis and those imposed following a contested fact finding hearing before a Fitness to Practise Panel. The Regulations do not require any notice period and provide no right of appeal to the First Tier Tribunal.

Our early experience suggests that NHS England has taken the view that the provision requires the removal of Performers from the list automatically if they are the subject of an interim order of suspension. That approach results in a radical change and invites obvious unfairness and hardship. The question is whether such a strict textual interpretation is correct.

On the face of regulation 28(1)(b) or 35(1)(a) the suggestion that the way in which the suspension comes about is of any relevance garners no support. The mandatory requirement to remove a Performer appears to turn on their status; are they suspended from the statutory register other than in “a health case”?

However, the consequences of such an approach are that a practitioner may be removed from the Performers List without any fact-finding hearing. That raises a real issue as to whether such an interpretation is consistent with a Performer’s rights under Article 6 of the ECHR. It must be arguable that the provisions of the Human Rights Act 1998 require the regulations to be read as containing an implicit limitation to substantive suspensions by Fitness to Practise Panels.

However it may be that an older principle of statutory interpretation could achieve the same result. Terms used in statutes must be given their ordinary meaning unless that leads to an absurd result. It may be that is precisely what could happen if the Regulations are read as mandating removal based on interim suspensions.

For example, suppose that NHS England receives information about a Performer which they believe might warrant removal from the list and they share that information with the statutory regulator. NHS England consider the information and decide to impose a suspension in accordance with Regulation 12. The Department of Health consultation on the Performers List reforms stated: “Suspension is intended to be an interim measure imposed whilst an investigation is ongoing.” The Regulations provide a detailed scheme permitting NHS England to impose conditions or remove the Performer following a fact-finding hearing and provide the Performer with a right to a rehearing before the First Tier Tribunal.

Regulation 12 sets out a threshold test for suspension. A suspension from the Performers List can only be imposed if the Board is satisfied that it is necessary for the protection of patients or members of the public or that it is otherwise in the public interest. That is the same threshold test which the Interim Orders Panel/Committee applies when it considers imposing an interim order of suspension from the statutory register.

Public Policy favours consistent results. One would expect that if NHS England determines that the threshold test for suspension is met then the statutory regulator would reach the same view applying the same test on the same evidence. However the perverse result of that is that the statutory regulator’s consistent decision to impose a suspension would automatically result in mandatory removal from the Performers List. The perversity of that outcome is only accentuated by the observation that Regulation 12 plainly envisages suspension from the Performers List being employed as an interim measure whilst NHS England await the “outcome of a regulatory investigation”.

A further example of the absurdity which results from the strict textual approach to interpretation arises when one considers the position of registrants who are subjected to interim suspension because of health concerns. The Regulations expressly provide that suspension in “a health case”, whether interim or substantive, will not trigger mandatory removal from the Performers List. However the specific way in which “health case” is defined in the interpretation section results in a stark disparity of treatment depending on the Performer’s profession. A doctor who is subject to an interim suspension because of health concerns does not come within the definition of “a health case” and would be automatically removed from the Performers List. By contrast, a dentist subject to an interim suspension on the same facts would fall within the definition of “a health case” and would be spared mandatory removal from the Performers List.

This is not the first time that statutory reforms have resulted in drastic and probably unintended consequences. The Medical Act 1969 provided the GMC with a power to impose a suspension as an alternative to erasure. It was more than ten years before it was realised that the effect of such a suspension included the automatic termination of the doctor’s contract of employment. In Tarnesby v Kensington, Chelsea and Westminster Area Health Authority [1981] IRLR 369 the House of Lords recognised that such an effect was drastic and untoward but that the plain language of the statute made it inescapable. The result was a “most unfortunate situation which calls for urgent legislation to remedy it.”

The potentially drastic effect of the Regulations has come to light far more quickly. This short article can only skim the surface of the interpretative and legal arguments which support the proposition that the Regulations do not mandate removal following interim suspension by the statutory regulator. Given the significance of the issue it is likely to end up before the courts sooner rather than later and given the changes in the interpretive landscape in the thirty years since the Tarnesby decision the courts are better placed to remedy the untoward effects without the need for further legislation.

Stewart Duffy
E: stewart.duffy@rlb-law.com
T: 020 7227 7418
© RadcliffesLeBrasseur


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