NHS employers who have taken doctors through the Maintaining High Professional Standards (MHPS) framework for capability will be aware of the importance of involving the National Clinical Assessment Service (NCAS) in the process. A recent case before the High Court provides useful clarification on the obligations upon NCAS and NHS employers in relation to clinical assessments.
Dr Chakrabarty worked at Ipswich Hospital as a consultant in cardiology and General Medicine. A number of concerns were raised about his clinical competence and he was investigated under the Trust’s MHPS procedure. The Trust then referred him to both NCAS and the GMC. An assessment was undertaken by the GMC. NCAS did not conduct their own assessment given the overlap with the GMC process.
The GMC concluded that Dr Chakrabarty’s practice was unacceptable and that he should re-train in a more junior role (SHO). There was some considerable confusion and delay around the GMC process which, ultimately, led the GMC to conclude that a fitness to practice hearing was necessary.
The Trust then wrote to NCAS to ask whether they objected to the Trust conducting a capability hearing. They raised no objection.
Dr Chakrabarty objected to this approach and sought an injunction to stop the Trust from convening the hearing until NCAS had made a finding, having considered the case, that remediation was not appropriate. He relied upon the case of Lim v Wolverhampton which concluded that doctors have a contractual right to be referred to NCAS for an assessment and for NCAS to conclude that that remediation has no realistic prospect of success before their employer proceeds to a capability hearing.
He also argued that the capability hearing should not take place until after the GMC had decided on his fitness to practice.
The High Court removed some of the uncertainty of the Lim decision and found:
- The employer has an obligation to refer cases to NCAS for them to consider assessment but NCAS has no obligation to conduct an assessment
- If NCAS do not carry out an assessment there is no impediment to the employer proceeding to a capability hearing
- In cases where NCAS do conduct an assessment and recommend remediation there is no obligation upon the employer to agree to it, particularly in cases where the plan is not practical
- There is no obligation upon an employer to delay a capability hearing where the GMC are conducting fitness to practice proceedings.
The judgment is a welcome development for NHS employers. Taking a doctor through a capability procedure can be a long, complicated process frequently subject to challenge. This judgment removes some of the obstacles to conducting a capability hearing and provides clarity around the obligations on NCAS.