DAC Beachcroft Health Adviser Alert: The role of the NCAS in MHPS proceedings: The High Court provides important clarity - DAC Beachcroft

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DAC Beachcroft Health Adviser Alert: The role of the NCAS in MHPS proceedings: The High Court provides important clarity

Published 6 August 2014

Introduction

The High Court has handed down its decision in the case of Dr Chakrabarty v Ipswich Hospital NHS Trust and the National Clinical Assessment Service (NCAS) as an interested party. The judgment has provided important clarity that:

  • NHS Trusts are under no obligation to agree to the terms of a remediation plan if one is proposed by the NCAS following an assessment; and
  • The NCAS are under no obligation to undertake an assessment.

If an NCAS remediation plan is not agreed by the parties, or the NCAS decline to undertake an assessment the Trust can pursue the concerns to a capability hearing under Part IV of Maintaining High Professional Standards in the NHS (MHPS).

This is a significant decision given previous case law that the role of the NCAS in such circumstances was mandatory.

Issue

Dr Chakrabarty was employed by Ipswich as a Consultant in Cardiology and General Medicine. A number of concerns were raised about his clinical performance and following a local investigation, he was referred to the NCAS for them to consider whether an assessment was appropriate.

At the same time, the GMC decided to undertake its own assessment of his practise. The NCAS therefore did not carry out a separate assessment. Following a lengthy dispute between Dr Chakrabarty and the GMC about its assessment and findings, Dr Chakrabarty was once again referred to the NCAS to consider whether an assessment was required. The NCAS took the view that the NCAS assessment would add nothing to the GMC assessment and declined to provide one. As such, the Trust intended to pursue the matter to a capability hearing under Part IV of MHPS.

Dr Chakrabarty sought an injunction to prevent the Trust convening the hearing. He relied on the case of Lim v Wolverhampton, which concluded that there was a contractual right for a doctor to be referred to the NCAS for an assessment, and the Trust could only proceed to a capability hearing under Part IV of MHPS after the NCAS had made a finding that the doctor was not capable of remediation. He also argued that the Trust could not proceed to a capability hearing until the outcome of the GMC proceedings at a Medical Practitioners' Tribunal Service hearing in respect of his fitness to practise.

The decision

The Court rejected Dr Chakrabarty's arguments.

In referring to the Lim case, and commenting on the role of the NCAS in the contractual MHPS procedure, the High Court in this case determined that an NHS body can proceed to a capability hearing in circumstances where:

  • The NCAS has declined an assessment; and/or
  • An assessment has taken place and remediation is possible, but the parties had failed to reach agreement in respect of a remediation plan and/or the Trust did not consider the plan practicable.

The High Court also indicated that it was not in breach of an express or implied term to await the outcome of the GMC proceedings, before pursuing the matter to a capability hearing. As long as the Trust, in coming to that decision had not acted in such a manner as to breach the implied term of trust and confidence, it was entitled to proceed to a capability hearing under Part IV of MHPS.

Our view

The increased role of the NCAS was a key feature introduced into MHPS when it replaced the old Health Circular HC 90(9) to provide NHS employers with detailed guidance on how to manage doctors in difficulty. This judgment will be welcomed by employing NHS bodies as it provides necessary guidance of the interpretation of the role of NCAS under MHPS following the onerous and uncertain decision in Lim.

The current case makes it clear that there is no obligation on the NCAS to carry out an assessment who may take the view that an assessment would add nothing. This may therefore be relevant when one of the Royal Colleges has been invited to undertake a review of a doctor's practise.

Further, the case makes it clear there is no requirement on a Trust to agree to the remediation plan in the event that it is not sustainable or is impractical. This, in our view, confirms that whilst the input and support from the NCAS can be invaluable, it puts the onus back on the doctor and his/her employing NHS body to work together in the context of the employment relationship to agree a remediation plan before a Trust can pursue concerns at a capability hearing. NHS employers must also be mindful not to act in such a way as to breach the implied term of trust and confidence.

How we can help

We recognise the complex and often unique and challenging issues that NHS organisations face in dealing with doctors particularly post Francis. Our specialist doctor's unit consists of experienced and specialist healthcare lawyers and advisers from our Employment and Pensions, Healthcare, Regulatory and Public Law and Litigation teams who work closely together to provide NHS organisations with pragmatic solutions. For more information please see the contact details below or speak to your usual DAC Beachcroft contact.

Authors

Udara Ranasinghe

Udara Ranasinghe

London - Fetter Lane

+44 (0)20 7894 6727

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