The guidance that Baroness Harding has produced in response to the grave injustices and subsequent death of Amin Abdullah, a gifted charge nurse at a London hospital, are very well researched and written. https://i.emlfiles4.com/cmpdoc/9/7/2/8/1/1/files/56794_letter-to-chairs-and-chief-executives-24-may-2019.pdf
They were published last May and distributed to Care Quality Commission Chair, NHS Providers Chair, Nursing and Midwifery Council Chief Executive and NHS Employers.
I’m not sure what happened to them then. I was told about the guidance by a suspended member of NHS staff whose treatment was a devastating travesty of justice and whose organisation claimed to be following the guidance.
That perfectly illustrates the failing of the guidance, that it has no teeth and is being successfully sidelined. Organisations ignore it, just as we hear of yet another report of avoidable and tragic deaths of babies, causing immeasurable grief to the parents, and of the astronomical bill for legal claims and costs paid out by the NHS for mistakes being made. Where were the whistleblowers? Probably silenced.
The only way the guidance will have any protection for staff is if NHS Improvement or similar organisation, is able to legally require trusts to implement the guidance and demonstrate that they are doing so.
It could also be a statutory requirement for the Nursing and Midwifery Council to ensure that referrals to them have followed the processes set out by the Guidance. That would make a huge difference to the numbers of staff being falsely accused of malpractice or being referred when lesser options could be used if there are problems.
It might also be possible to prevent malicious allegations and retrain or remove poorly performing managers who ignore the guidance, a matter that no one in any previous guidance has dealt with.
So the excellent guidance will have been a huge waste of resources, and will achieve nothing. Amin Abdullah, who had a very strong sense of justice and who suffered so terribly, will have died in vain and his partner and his legal counsel will have laboured in vain.
I publish the Guidance below before it disappears without trace as so many guidelines and reports and initiatives have done before it.
Yours with no glimmer of hope
Additional guidance relating to the management and oversight of local 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
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
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
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
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.
Thank you for your attention to these vital issues.
Baroness Dido Harding, Chair, NHS Improvement