New guidance to help trusts deal with investigations and disciplinary procedures

What can HR teams and NHS Trust boards learn from the Amin Abdullah case.

NHS Improvement chair, Dido Harding has written to trust chairs and chief executives detailing the findings of an independent analysis by an advisory group following the very tragic death of Amin Abdullah in 2016. The letter includes guidance relating to the management and oversight of local investigation and disciplinary procedures and a call to action to review the guidance against current procedures and make adjustments to ensure your health and care organisation is in line with best practice.

The new national guidance on NHS disciplinary processes cover seven themes – implementing these across the NHS will contribute to ensuring we treat people fairly and protect their wellbeing.

The seven dos of investigation and disciplinary procedures:

1. Adhering to best practice

(a) “The development and application of local investigation and disciplinary procedures should be informed and underpinned by the provisions of current best practice, principally that which is detailed in the Acas ‘code of practice on disciplinary and grievance procedures’ and other non-statutory Acas guidance; the GMC’s ‘principles of a good investigation’; and the NMC’s ‘best practice guidance on local investigations’ (when published)."

(b) "All measures should be taken to ensure that complete independence and objectivity is maintained at every stage of an investigation and disciplinary procedure, and that identified or perceived conflicts of interest are acknowledged and appropriately mitigated (this may require the sourcing of independent external advice and expertise)."

2. Applying a rigorous decision-making methodology

(a) "Consistent with the application of ‘just culture’ principles, which recognise that it is not always appropriate or necessary to invoke formal management action in response to a concern or incident, a comprehensive and consistent decision-making methodology should be applied that provides for full and careful consideration of context and prevailing factors when determining next steps."

(b) "In all decision-making that relates to the application of sanctions, the principle of plurality should be adopted, such that important decisions which have potentially serious consequences are very well informed, reviewed from multiple perspectives, and never taken by one person alone."

3. Ensuring people are fully trained and competent to carry out their role

(a) "Individuals should not be appointed as case managers, case investigators or panel members unless they have received related up to date training and, through such training, are able to demonstrate the aptitude and competencies (in areas such as awareness of relevant aspects of best practice and principles of natural justice, and appreciation of race and cultural considerations) required to undertake these roles."

4. Assigning sufficient resources

(a) "Before commencing investigation and disciplinary procedures, appointed case managers, case investigators and other individuals charged with specific responsibilities should be provided with the resources that will fully support the timely and thorough completion of these procedures. Within the overall context of ‘resourcing’, the extent to which individuals charged with such responsibilities (especially members of disciplinary panels) are truly independent should also be considered."

5. Decisions relating to the implementation of suspensions/exclusions

(a) "Any decision to suspend/exclude an individual should not be taken by one person alone, or by anyone who has an identified or perceived conflict of interest. Except where immediate safety or security issues prevail, any decision to suspend/exclude should be a measure of last resort that is proportionate, time bound and only applied when there is full justification for doing so. The continued suspension/exclusion of any individual should be subject to appropriate senior-level oversight and sanction."

6. Safeguarding people’s health and wellbeing

(a) "Concern for the health and welfare of people involved in investigation and disciplinary procedures should be paramount and continually assessed. Appropriate professional occupational health assessments and intervention should be made available to any person who either requests or is identified as requiring such support."

(b) "A communication plan should be established with people who are the subject of an investigation or disciplinary procedure, with the plan forming part of the associated terms of reference. The underlying principle should be that all communication, in whatever form it takes, is timely; comprehensive; unambiguous; sensitive; and compassionate."

(c) "Where a person who is the subject of an investigation or disciplinary procedure suffers any form of serious harm, whether physical or mental, this should be treated as a ‘never event’ which therefore is the subject of an immediate independent investigation commissioned and received by the board. Further, prompt action should be taken in response to the identified harm and its causes."

7. Board-level oversight

(a) "Mechanisms should be established by which comprehensive data relating to investigation and disciplinary procedures is collated, recorded, and regularly and openly reported at board level. Associated data collation and reporting should include, for example: numbers of procedures; reasons for those procedures; adherence to process; justification for any suspensions/exclusions; decision-making relating to outcomes; impact on patient care and employees; and lessons learnt."

Where next. Taking stock.

HR teams and trust boards need to review their health and care organisations current procedures and processes against the updated guidance, making sure it reconciles with the seven principles.

Dido Harding specifically draws trust chairs and chief executives attention to item seven: board-level oversight and asks them to consider how their organisation overseas investigations and disciplinary procedures.

In addition, for cases currently being considered and all future cases, Harding asks teams to consider five questions (and, where necessary take corrective action). The questions are set out in her letter of 24 May 2019, covering issues such as whether there is sufficient understanding of the issues or concerns, and the circumstances relating to them, to justify the initiation of formal action and whether the application of a formal procedure represent a proportionate and justifiable response in the circumstances.

Do get in touch with Jog Hundle or Stuart Craig if you would like to discuss issues relating to investigation and disciplinary procedures and training for your Boards and senior managers.

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