In theory suspension is a temporary measure to enable allegations of
misconduct to be investigated without interference. In practice
suspensions are frequently prolonged beyond the end of any enquiry, and are used
for personal motives or as an unlawful punishment to deter conduct, such as
reporting low standards of treatment, which is proper (and arguably a
professional obligation) but inconvenient to employing bodies (NHS Trusts).
See articles for
The Whistle and the
report
(59 pages) from the National Audit Office published on
November 6, 2003.
1.4 ... Suspension is not an end in itself but is used to enable
trusts to investigate concerns about an individual's conduct or capability. It
is deemed in law to be a neutral act intended to protect the interests of
patients, other staff, or the practitioner concerned, until the outcome of an
investigation is known. In practice, however, it is rarely perceived as neutral,
and can adversely affect a practitioner's career and reputation, even when
exonerated. When staff are excluded they are often prohibited from entering the
work place. This may impact on their continuing professional development, an
increasingly important component of continued professional registration and
revalidation.
1.23 Trusts identified settlement costs in less than
10 per cent of the 230 cases which ended in resignation, retirement or mutual
agreement. Not all of these cases would have included a settlement but we
identified two cases where trusts excluded settlement costs from their
estimates. Where there had been settlements, in two cases we identified
confidentiality clauses. The
Committee of Public Accounts has criticised the use of such confidentiality
clauses in the Dr O'Connell case and more recently when reporting on
'Inappropriate Adjustments to Waiting Lists'.10 The Department
accepted that confidentiality clauses should not prevent trusts disclosing a
settlement's circumstances to potential employers.11 In following up
the 46 long term doctor exclusions (paragraph 1.19), we identified two further
cases where trusts had agreed confidentiality clauses in negotiating settlements
with the excluded doctors.
Case 3 (page 34)
Rejection of external assessments
Miss Briony Ackroyd and University
Hospitals Coventry and Warwickshire NHS Trust
In February 2000 the Trust suspended Miss Ackroyd, a consultant breast
surgeon, following concerns about her professional competence and reported her
to the General Medical Council. Over the next two years the General Medical
Council undertook a performance assessment. In March 2002 Miss Ackroyd agreed a
Statement of Requirements whereby her performance would be regularly appraised
by a consultant colleague. The General Medical Council would monitor the case
and arrange for a reassessment after 12 months. The Trust did not, however,
reinstate Miss Ackroyd and continued to consider using its disciplinary
procedures. In April 2002 Miss Ackroyd asked the Chief Medical Officer to help
and he asked the National Clinical Assessment Authority to assist in finding a
way forward. With the Authority's support, in January 2003 some three years
after the original suspension, the Trust and Miss Ackroyd reached an agreement
whereby Miss Ackroyd resigned. She is now successfully retraining as a general
practitioner. Costs are estimated at £825,000.
Case 5 (page 35)
Allegations and counter allegations
Dr Judy Evans and Plymouth Hospitals NHS Trust
In August 1999 Dr Judy Evans, a consultant plastic surgeon in Plymouth since
1986, supported a black female junior plastic surgeon who had complained of
racial abuse by another consultant in February 1999. Within weeks, after
clinical complaints from the alleged abuser and a newly appointed colleague, Dr
Evans was sent on 'gardening leave'. A Royal College of Surgeons rapid response
team recommended her return to work with limited restrictions on her practice
and mediators to work in the department. The General Medical Council performance
assessment found 'no serious deficiency' in her practice. No detailed audit was
undertaken and Dr Evans took the Trust to a Tribunal. The Trust settled out of
court but Dr Evans had to agree to resign. She has not been able to work in the
NHS since and now works privately. Estimated costs are £500,000.
2.22 Some of the most complex cases are not about
professional competence but occur where there are professional disagreements
between colleagues and where there is a breakdown of relations. A number of
cases appear to result from a breakdown in interpersonal relations between a
clinician and colleagues or managers, often characterised by allegation and
counter allegation which adds to the complexity of the investigation (Case 5).
In these circumstances clinicians consider that
it was because they were 'whistle
blowers' that they were excluded. Of the 50 clinicians who contacted us
after being excluded half claimed that
their 'whistle blowing' was a factor in their exclusion.
We were also told of cases where it was
alleged that trusts had threatened staff with suspension if they spoke out
against trust practices and saw documentary evidence in one case.
Case 8 (page 38)
University Hospitals Coventry and
Warwickshire NHS Trust
In recent years the Trust suspended three consultants, including Miss Ackroyd
(Case 3). The two other consultants were suspended because of allegations of
bullying and harassment of junior staff, not their clinical practice. Both
consultants had previously raised concerns about clinical practices in the
Trust.
One consultant was suspended for nearly three years before being
reinstated following High Court and Court of Appeal rulings in support of the
consultant. The independent panel which investigated the suspension concluded
that the consultant had oppressed a junior doctor but recommended that he should
be reinstated.
The other suspension has lasted 20 months and was ongoing in
October 2003. In addition the
Commission
for Health Improvement's clinical
governance
review (September 2001) highlighted deep concern that medical staff
felt "bullied, intimidated, threatened and oppressed by senior managers when
raising concerns about clinical care or conditions. Some consultant staff
reported fear of speaking out for fear of being victimised, following occasions
where they believed their colleagues had been victimised." CHI's follow up
report (March 2002) concluded that "limited progress had been made by the Trust
to build effective working relationships between doctors and
managers…Relationships had broken down between some consultant medical staff and
senior managers. In particular some doctors did not feel safe to raise concerns
about clinical risk." The Trust lost its star rating and was franchised. The
Chairman, Chief Executive, and Director of Personnel resigned, with the Chief
Executive working his six month period of notice to provide continuity in
implementing an action plan. The Medical Director resigned partly because of his
concerns over the way that suspensions were being managed. Following
franchising, a virtually new Trust Board was appointed during the second half of
2002. In June 2003 CHI undertook a further review against the action plan and
advised that "the CHI clinical governance report should not prevent the Trust
from receiving three stars". CHI awarded the Trust two stars in the 2003 overall
assessments. The costs of the suspensions for the two bullying and harassment
cases are estimated at £600,000.
A cause of the problem is that NHS Trusts were established as though they
were profit-making businesses.