High Court empowers Trusts to progress to capability hearings under Maintaining High Professional Standards Part IV
I am writing to draw your attention to an important High Court judgment which clarifies the circumstances in which employing Trusts can proceed to a capability hearing under Part IV of Maintaining High Professional Standards in the modern NHS (MHPS). NCAS was granted permission to intervene in the case of Chakrabarty v Ipswich Hospital NHS Trust, in order to set out its position to the High Court.
The High Court had previously considered NCAS’ involvement in the capability process under MHPS in Lim v Royal Wolverhampton Hospitals NHS Trust. The judgment in Lim created practical difficulties for employers and practitioners when making a decision about how to resolve concerns about capability. The Chakrabarty judgement takes a different view from Lim.
This Judgement makes clear the employer has discretion to proceed to an internal capability hearing, subject only to asking NCAS to consider if there should be an assessment. The High Court Judgement found:
- There is no requirement for an NCAS assessment panel to find a practitioner irremediable before proceeding to a capability panel – this is only an example of where a case may proceed to a capability panel, not the only circumstance where a decision may be made to proceed to a capability hearing.
- Once local action to resolve capability issues has been exhausted or ruled out, a Trust is required to refer the matter to NCAS to determine whether an assessment should be carried out;
- Where NCAS decides not to undertake an assessment and a Trust considers that an action plan is not practicable, (or the action plan is not agreed), the Trust can proceed to a capability hearing;
- Where NCAS carries out and completes an assessment, but the doctor and Trust cannot agree an action plan to remedy the lack of capability, a Trust can proceed to a capability hearing;
- A Trust cannot act irrationally or unreasonably in rejecting an action plan suggested by NCAS, simply so that they can proceed to a capability hearing. However, where there is a genuine dispute in relation to the action plan, the proper forum for resolving that dispute is a capability hearing.
We are pleased to have been able to bring clarity to the role of NCAS in capability hearings. This judgement will enable the NHS to manage performance concerns quickly and efficiently whilst ensuring fairness to all involved.
NCAS strives to help resolve concerns about the professional practice of doctors, dentists and pharmacists in the UK. Our core services continue to be available without charge to NHS organisations in England.
I encourage Trusts and other NHS organisations to contact NCAS for advice at the earliest stages if they have concerns about a practitioner’s performance, including concerns about capability.
Dr Stephanie Bown
Director of NCAS