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Report:
Suspension failure in the NHS
by
Julie Fagan - August
2004
Julie
is a health visitor and based this report on experiences
of nurses and
midwives suspended from work. This report was for Brian
Jenkins MP, member of the Public Accounts Committee.
Reproduced with the kind permission of Julie
Skip
to:
Summary
Sources of Information
The present situation
The environment in which suspensions may occur
Reasons for suspension
Process of suspension
Common outcomes of suspension
Union representation of suspended staff members
Attempted solutions by the Department of Health
Recommendations
Conclusions
Appendix
1 The new Directions published by
the Department of Health, December ’03
and their potential for fairness
2 Checklist questions
SUMMARY
This
report aims to highlight
the lack of accountability, common procedures
and effective management in situations of NHS
staff suspensions. It calls for action because of the cost
to the NHS, to the individual and their family. This
includes implementation of the Directions currently
in place for doctors and dentists, for all NHS
disciplines.
SOURCES OF INFORMATION
- ?These
questions and this report are based on information
received from nurses and midwives who believe they were
unjustly
and unnecessarily suspended from work or who went off
sick when their working environment became so hostile,
they were
no longer able to practice safely. They have made contact
through the web site www.suspension-nhs.org
- This
web site was set up to provide support and information
for people undergoing these traumas. In addition, I
have personal experience of suspension.
62 people have emailed me to speak of their own experiences,
of whom 58 worked in the NHS and of whom 52 were nurses
and midwives.
- What
they have been recounting, is corroborated by the findings
of the National Audit Office (NAO) report
6.11.03,
(www.nao.gov.uk) ‘The Management of Suspensions
of Clinical Staff in NHS Hospital and Ambulance Trusts
in England’,
and Rachel Murray’s unpublished PhD study,
Researching the Lived Experience of Nurses Suspended
from the Workplace:
The University of Manchester, 2004 and used with
thanks.
- Recommendations
include observations made by the National Patient Safety
Agency (NPSA) and
their work
on the
Incident Decision Tree, and the new Directions
for the Management
of Exclusions of Doctors and Dentists, produced
by the Department of Health, December ‘03.
THE PRESENT SITUATION
Suspension, a neutral act in employment law, is appropriate
for the protection of the public, for the safety of patients
and for the prevention of tampering with evidence, in cases
of suspected gross misconduct, where there is well founded
evidence. There is no statutory requirement to notify the
Department of Health or any other body when suspension has
occurred. Human resources departments are only required to
keep a record of all staff excluded from work after 28 days.
There is no record of shorter periods of suspensions.
The
situation is changing for some NHS staff, that is, doctors
and dentists. There has long been acceptance by the Department
of Health that suspension is very wasteful, especially since
the enquiry into the 11 year suspension of Dr O’Connell
in 1995 (Appendix 2, NAO report). For the first time however,
the NAO report provided a measure of the seriousness and
extent of the problem. Moreover, the National Clinical Assessment
Agency (NCAA) has demonstrated that their participation in
the process of dealing with allegations made against staff
can make a significant difference to the number of staff
actually suspended. Since April 2001 the NCAA has handled
approximately 600 referrals and in 85% of cases suspension
was avoided (Directions ’03).
However
the situation for other practitioners is different. Royal
College of Nursing (RCN) data for 2002, revealed over
200 nurses had contacted the RCN for help following suspension.
It is thought the numbers involved may be much higher (Murray
2004). In a 15 month period from April 2001 to July 2002,
567 nurses and midwives were excluded from work for longer
than 28 days (NAO report). In 2002 – 2003, 154 nurses
were removed from the Nursing and Midwifery Council register
and 66 were given a caution. In other words, suspension had
been necessary. This leaves several hundred who were not
found guilty of gross misconduct, that is, suspension had
been inappropriate.
Each
trust or organisation has its own guidelines about who
has the power to suspend and how it will be dealt with
(NAO report). Suspensions are often the result of jealousy,
arguments between managers and colleagues or to prevent a
colleague blowing the whistle on them by getting in their
own allegations first. They are not very often as a result
of patients’ complaints (NAO report). Bullying may
be a component in the situation and bullying and suspension
seem to bear many similarities.
The
costs are high. As well as the loss of skills and expertise
of a staff member, there is the cost of cover for the suspended
nurse, if any is provided, the cost of managers’ time
for dealing with the suspension, plus the cost in lowered
morale of colleagues, and damage to health for all involved.
The suspended person may well become clinically depressed
and require treatment. The NAO report put the cost at £29
million per annum. (They noted that there was serious underreporting
of costs by organisations.)
The current system is disciplinary and adversarial, an inappropriate
and damaging approach to problems which discourages incident
reporting and examination of systems (NAO report).
Managers are often very busy and some appear to lack the
skills required to deal with these situations (website contacts).
In many cases NHS trust management do not acknowledge or
work within current employment legislation (NAO report).
Specialist solicitors are very expensive to hire and industrial
tribunals are extremely stressful events for all involved.
MPs may sometimes be able to demand an enquiry. The effects
of suspension are often that experienced and competent practitioners
leave the NHS (27% of all clinicians other than doctors and
dentists in the study of resolved cases in the NAO report,
resigned or retired) and the morale of remaining staff is
damaged.
Suspension leaves the person in a state of shock. People
have contacted me, expressing their devastation, disbelief,
hurt, isolation, anger, mental ill-health, even suicidal
thoughts, to name some of the emotions felt. My own experience
of suspension has made me painfully aware of the cost to
the individual and their families. Suspension is described
by human resources as a protective mechanism. To protect
is to shield from danger or injury (Chambers Dictionary 1998).
Clearly suspension fails to do this for the suspended person.
Suspension is such a serious step for managers to take that
people assume that there must always be grounds for it. Many
people with their families and friends now know that this
is not correct.
THE ENVIRONMENT IN WHICH SUSPENSIONS MAY OCCUR
Often
there are difficulties in the environment, for example
staff shortages and excessive workloads (Murray R 2004).
There may also be team clashes of personality, vision and
direction (NAO report 2003). Powerful staff members with
suspect practice have managers who protect them (see the
Andrea Adams Trust web site). Bullying and harassment have
been features of some people’s experiences (website
contacts). There is professional jealousy of innovative staff,
who are often award winners (website contacts). Some of these
people are outspoken but this is what is needed in the NHS
cf Faugier J ‘We need mavericks to save the NHS’ (Nursing
Times 1 April ’03). Managers have little experience
or knowledge of how to deal with complaints or of the criteria
for suspending staff (NPSA).
REASONS FOR SUSPENSION
Allegations are not often from patients (NAO report). Where
an allegation is made and staff protest their innocence,
the patient may be believed even though there is no evidence
to support the allegations. This is a particular problem
for staff working in mental health settings (web site contacts).
Staff are being suspended because of false allegations by
other staff members (web site contacts and NAO report). This
is happening to managers and clinicians alike.
‘Whistleblowers’ can have the whistle blown
on them. A colleague refuses to respond in anyway to suggestions
for improving her work performance and then uses false allegations
to protect herself. Public Concern at Work, a research charity
that supports whistleblowers, found that more than £10
million a year is paid out in compensation to employees who
were victimised or sacked after reporting poor practice.
Poor judgment or an error by a clinician is dealt with harshly;
it underlines the culture of blame endemic in the NHS. There
is no attempt to look for systems failures implicated in
most critical incidents (NPSA).
Some people go off sick anticipating that things are going
badly wrong, often involving bullying and harassment, and
they fear suspension. They are placed on half pay after six
months sick leave and then when the situation has still not
been resolved after a year, are paid statutory sickness benefit,
which causes serious financial hardship.
PROCESS OF SUSPENSION
The following points are drawn from all the sources of information
previously listed.
-
Suspension
with immediate effect denies people the opportunity
to explain their actions or provide or safeguard evidence
supporting their actions before suspension is implemented.
-
The
staff member is often told to leave the premises or escorted
off in a state of shock and is in no fit state
to
travel home.
-
The
system means they are presumed guilty until innocence
can be proved.
-
Their
defence with supporting evidence is often ignored.
-
The
whole process is adversarial and stressful for all. This
is particularly true of disciplinary hearings.
-
There
is a serious conflict of interest for the investigator
who is also a member of management.
They will find
it very difficult to be impartial when management
colleagues have
made the decision to suspend and now need evidence
to support their action. The investigator may
therefore feel under pressure
to search for evidence to prove guilt not establish
facts. It may even be that the investigator’s
own future in the organisation may be at stake.
-
The
person conducting the investigation may have
been involved in the suspension and may also
be the person
making the allegation.
-
Disciplinary
policies and procedures are frequently not followed,
for example,
no written allegations
are given.
-
In
the majority of cases the allegations do not justify
suspension, that is, they do not
constitute
gross
misconduct and neither is there any danger
to patients, nor possibility
of contaminating evidence.
-
The ‘accused’ is
often not kept informed of what is happening,
for example, when the next decisions
will be taken.
-
Often
no timescales are given. There may be no urgency to
deal with the situation.
It may
continue
for months.
Industry, that is, large organisations,
deal with suspensions as an
emergency. They usually last no longer
than one week. (Sources: human resources
manager
for a
multi-national company; managing
director of a European environmental
research company; former Marks and Spencer’s
manager; former managing director of
a steel business.) They treat it as an emergency,
not
only because of the cost to the company,
but also because of the cost to the
health of the individual and their family!
-
People
are regularly denied access to reports pertaining to
their suspensions.
-
New
and unsubstantiated allegations may be introduced with
no opportunity for
the suspended
staff member
to address
them.
-
If
no disciplinary action is to be taken, the staff member
cannot appeal
against
the investigation
report findings and
recommendations even though they
may contain new
and unsubstantiated allegations.
-
It
is hard for human resources staff to remain neutral.
They feel
that
they have
to support
the management.
They rarely support the suspended
member of staff.
COMMON OUTCOMES OF SUSPENSION
The people in the reports and who have made contact through
the web site, very often experience totally unsatisfactory
conclusions to investigations and hearings. This is illustrated
by the following:-
- Many
people are told there is no case to answer and
have to return to work without any explanation or public
apology.
- A
person who has made malicious allegations goes unchecked.
- Return
to work is very difficult. The person’s
confidence has been badly undermined and reputation
damaged or destroyed.
- There
is an understandable common misconception
that if a person has been suspended, there
is something dubious about
their practice. They may be viewed with suspicion
by some colleagues, who may also refuse to
work with them.
- An
unjust written warning or a unjust final written warning
means the clinician works under
constant
duress even though
innocent of any wrongdoing, as there is no
procedure for refuting false allegations.
- Because
of the serious nature of suspension, managers may justify
their actions by putting
some form of supervision
or assessment in place. These are very
difficult circumstances under which the clinician is
being assessed. The clinician
may well be suffering poor mental health
as a result of the whole experience.
- The
assessors themselves are in a difficult position as
the managers expect some malpractice
to be uncovered
to justify
their actions.
- Many
people have given up the struggle and resign. Extensive
expertise and experience
is lost.
- Some
of the people who have resigned go for constructive dismissal
as the
only way
to establish
their innocence,
a stressful undertaking for all and
costly to the NHS.
- They
may also sue for damages. The NAO report did not have
the possible
range
of costs involved
in staff suspensions,
only an average. As some staff
experience serious mental ill health, damages
awards are likely
to be high.
- All
this perpetuates the culture of blame; there is no learning
from systems
failures.
UNION REPRESENTATION OF SUSPENDED STAFF MEMBERS
First level union representatives are often volunteers who
may have no agreement with their employers for cover. They
rely on the goodwill of colleagues to provide cover for their
own work and they vary in the amount of time and support
they are able to give. The level of training they have received
may also be variable and sometimes there is a lack of knowledge
of procedures.
Cases may be complex and if they involve clinical issues,
the second level representative may have no expertise to
deal with them, if they come from non nursing backgrounds.
There is also an issue here for clinicians and managers,
that they need some protective mechanism to demonstrate that
their practice is safe and based on current research etc.
Union representatives and staff members are approaching
the situation from two opposing directions, that is, the
union representative is looking at the situation dispassionately
and in the light of organisational procedures, in line with
employment practices. The staff member often lacks knowledge
of these, is in a state of shock, and is devastated by the
apparent attack on their integrity and practice. The staff
member has to trust their union representative at a time
when their usual ability to trust has been seriously damaged.
Clear explanations, with written information to support what
is being said, might help to prevent some of the disappointment
and sense of disaffection some union members feel.
The union representative may also have to deal with managers
who lack experience or training to deal with employment situations.
When sound advice and recommendations from union representatives
are given, trust senior managers may ignore them and this
results in a confrontational situation that limits the possibility
of a satisfactory resolution.
People’s
experiences were that some of the representatives had been
excellent (Murray 2004 and web site contacts). Others
found that they lacked knowledge and effectiveness. Some
were described as ‘useless’. Other comments included,“The
fulltime officer was too close to the managers, appeared
to be in
their pockets and on their side” and “ The union representative did
not
return calls or reply to emails.”
Some
union members felt that the representatives thought they
were mentally unbalanced. The union representative did
not understand how stressful the whole experience was and
thought the members were over-reacting. Some representatives
appeared to believe the union members were guilty and they
recommended compromising with the management and taking a
reduced ‘sentence’ as a victory.
Difficulties were described arranging meetings quickly when
the regional officer was involved due to his/her full diary
and the full diaries of the managers. (Again, this rarely
happens in industry, that is, large organisations, because
they treat it as an emergency situation and expect to deal
with it within a week. They cannot afford the cost to their
business and its effect on their competitiveness.)
There is very little possibility of just resolution if the
representative is unhelpful. The suspended person is completely
alone, unless they have a helpful family member or friend
with the necessary expertise or sheer determination and
time to spend. Most people cannot afford a solicitor and
in their distressed state, it is almost impossible for
them to think coherently.
ATTEMPTED SOLUTIONS BY THE DEPARTMENT OF HEALTH
Unjust
and unnecessary suspensions contravene the Government’s
attempts to change the culture within the NHS from a culture
of blame to a culture of responsibility (cf Donaldson 2000
An Organisation with a Memory) recognising that ‘culture
matters in the delivery of successful healthcare.’ (Bevington
et al ‘Culture vultures: change management’ Health
Service Journal 8 April ’04).
The Department of Health has taken several measures to try
and accelerate this change:-
- The
establishment of the National Clinical Assessment Authority
(NCAA) to deal with complaints and concerns made
against doctors and dentists.
- The
establishment of the National Patient Safety Agency (NPSA)
and its subsequent
publication of the Incident
Decision Tree to give guidance to managers faced with
allegations
such as unsafe practice.
- The
creation of a non-punitive and anonymous reporting and
learning system by the National
Patient Safety
Agency for patient-related adverse events, near misses
and medical
errors, thus potentially providing safety to ‘whistleblowers’.
- Directions
published by the Department of Health for doctors
and dentists in December ’03, whose
principles reflect ACAS best practice and can therefore
be applied to other
groups (see Frequently Asked Questions section
of the Directions).
- Two
meetings between the Chief Nurse’s Office and
the NCAA to look for ways of improving organisations’ performance.
The outcome of these meetings is not available
to staff.
- To
look at the possibility of systems failure (NPSA). How
did the situation get to
serious
concerns? Why
wasn’t
it already seen that this person constituted
a threat to patient safety if there truly was
poor work performance?
RECOMMENDATIONS
Sufficient resources need to be made available to ensure
that the following changes are implemented. These resources
would be available from the money saved by the avoidance
of the use of inappropriate and over long suspensions.
1.
All suspensions must be reported to the Department
of Health regardless of the length of the suspension.
A pro-forma
should be used to ensure reasons for the suspension and
staff member’s job title etc are recorded, to
estimate costs and aid research.
2. The Directions for doctors and dentists should
be followed for all staff and also their use
tightly monitored.
(See
Appendix 1 for a list of the Directions’ processes
and benefits.) This would include the involvement of
the NCAA.
3. The NPSA Incident Decision Tree which looks for
the possibility of systems failure prior to the use
of suspension to establish
if there is a need to suspend the staff member, should
be followed and its use tightly monitored.
4. The checklist questions in Appendix 2 can be used
as a tool to enable an independent organisation
to monitor the
suspension process.
5. More research is needed to establish the scale
of suspensions, whether some staff are more vulnerable
to suspension than
others, if some organisations have developed
a culture of suspension and if so, why. This
research
needs
to
be linked
to the studies of workplace bullying which appears
to share many similarities such as false allegations,
isolation and
devastation. Systems failure analysis should
be used to try and identify what is going wrong
and
to find
solutions.
6. Action needs to be taken against the staff
members who make malicious and unfounded allegations
to
prevent them
taking such action again, and to act as a deterrent.
7. Where a mistake has been made by management
or where unfounded allegations have been
made, and there
is
no case to answer,
staff must have a written public apology.
8. The person making the assessment must
be independent of the organisation’s managers. They must also
have the necessary skills, knowledge and experience to
undertake it.
They must be impartial and mediate a solution wherever
possible. There must be an appeal mechanism built in
to the process.
9.
Examples of good practice for dealing with allegations
of poor performance
need to be
made available nationally
and used.
CONCLUSIONS
This report shows that:-
- organisations
are not accountable
- the
full extent of the problem is hard to assess
- there
is a need for effective action because of the cost
to the NHS, to individuals and their families
- the
Directions for doctors and dentists, would address many
of the failings
of the current systems
if they were
applied to all staff members
- it
would be a cost-effective solution in the long term to
extend them
to all staff
- examples
of good practice for dealing with allegations, need to
be made available nationally
- there
is a need for independent, impartial investigators to
conduct investigations and
mediate a solution
- there
is a need for research to investigate suspensions within
the NHS including the
high numbers of reported
cases of bullying, with the use of systems
failure analysis,
to try and identify what is going wrong
and find solutions.
The cost of the suffering of the people who have made contact
through the web site, is unquantifiable. The despair they
detail, sometimes suicidal thoughts, and the distress of
their families, needs to be heard and responded to. It
is too late for most of them but people may be able to
make some sense of their suffering if and when systems
are put in place to protect others.
APPENDIX
1:
THE NEW DIRECTIONS PUBLISHED BY THE DEPARTMENT OF HEALTH,
DECEMBER ’03 AND THEIR POTENTIAL FOR FAIRNESS
The Directions recognise:-
- that
suspension may now only be used for the most exceptional
circumstances
- that
exclusion is not a solution
- that
other approaches should first be exhausted
- the
need for a speedy resolution and if the exclusion is
not actively
reviewed after four weeks, the practitioner
is entitled to return to work
- the
need for the chief executive’s involvement
so that poor management decisions
may be prevented
- the
appointment of a non-executive board member so that some
impartiality
may be possible – a
major failing of the current
system. The board member can
request reports
and keep the process moving.
The defendant may make representations
to the board member at any
time after
the letter with allegations
is received ie there is also
the possibility of a mediator/advocate
- the
need for the involvement
of the NCAA as an impartial
outsider to recognise
work systems failures rather
than focusing only on the
individual
- the
need for and provision of a definition of what constitutes
serious
or repetitive
performance difficulties
- the
need for much greater fairness for the ‘defendant’,
for example, to see all
correspondence, to know who will be interviewed
- that
the purpose of the investigation is to ascertain the
facts in
an unbiased manner
and not to secure
evidence
against the practitioner
- the
need to involve an outside practitioner
if
the case is
complex
- the
need to stop the exclusion from
premises
except under
exceptional circumstances,
so that the member
of staff can retain
contact
with
colleagues, take
part in clinical
audit,
keep up to
date with developments,
and undertake
training
and research
- the
need to monitor exclusions by the Department of Health
via the strategic
health authority
from
data provided
by
the trust board.
The trust board
also has
to ensure
these procedures
are
followed and
that the case is being
progressed
- that
many of the principles in the
framework reflect
ACAS best
practice and
can therefore
be applied
to other
NHS groups.
Under the Employment
Act 2002, disciplinary
action
has to
be consistent
- most
failures in standards of care
are caused
by systems
weaknesses
They therefore have the potential to help to change the
blame culture that currently exists and to protect all staff.
2:
CHECKLIST QUESTIONS
Monitoring of the suspension process in an organisation
1. How many clinicians and managers are currently suspended
from work in this trust?
2.
If the suspension was imposed after May ’04, was
the Incident Decision Tree of the National Patient Safety
Agency used to inform the decision? If not, why is this?
3.
Was the possibility of systems’ failures and how
they may have impacted in the situation, considered?
4. What are the job titles and grades of the people currently
suspended?
5. For how long have they been suspended?
6. On what grounds have they been suspended?
7. How many other staff are on sick leave for fear of impending
suspension due to allegations being made against them?
8. What process is being used to investigate allegations
made against staff, to resolve the situation?
9. Who in the organisation is overseeing the process?
10. Is this person independent or do they have a conflict
of interest?
11. Are they operating by ACAS best principles as outlined
in the new Directions? If not, which principles are they
operating by? Why is this?
12. To what timescales are they operating? What and who
is determining these timescales?
13. Do the people, charged with conducting the investigation
and subsequent processes, have the necessary knowledge, skills
and experience to undertake this work?
14. Will they have specialist advice and support through
the process? If so, who will provide it?
15. Have time and resources been ring fenced for them, to
accomplish the work thoroughly and speedily?
16. How is the suspended person being kept in touch with
their clinical base and skills as advocated in the new Directions?
17.
If there is no case to answer, how will the staff member’s
name be cleared and who will give them a written apology?
18.
If it is found that allegations made were malicious, what
action will be taken against the perpetrator(s)? What
investigation will be undertaken to find the system’s
failure that allowed this to occur and what strategies will
be put in place to prevent its reoccurrence?
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