Exclusion from Work

Background Information

If concerns are raised about a doctor, it is up to the Trust to consider these concerns and decide how they should be managed. If the concerns are serious enough to warrant investigation, the Trust will then need to consider whether they need to impose restrictions on the doctor whilst they investigate the concerns, or whether the doctor in question needs to be excluded whilst the investigation is ongoing.

When concerns are raised, the Trust will need to refer to their own disciplinary policies and also need to follow ‘Maintaining High Professional Standards in the NHS (‘MHPS’). The Trust should also take advice from Practitioners Performance Advice Service (‘PPAS’).

When a doctor has been excluded from the workplace, MHPS states that this should only be a temporary measure while the Trust considers how to resolve the issue. Any exclusion from work should only be imposed after careful consideration; exclusion should not be seen as assumption of guilt or a disciplinary penalty at this stage.

Purpose of Exclusion

Exclusion will be imposed for one of the following reasons:

To protect the interests of other members of staff within the Trust and the patients;
To act as a safeguard precaution in the interests of the doctor;
To assist the investigation process if there is a risk that the doctor’s presence in the workplace could hinder the investigation.

The Process – Excluding a Doctor from Work

An NHS Trust Officer, along with the Trust Board, acquire the responsibility for ensuring the exclusion process is fair, and kept under review at all times.

The Chief Executive has overall responsibility of making sure the exclusion process remains fair;
The Medical Director or Senior Manager is often assigned as Case Manager for the investigation as a whole;
The Investigating Officer has the task of providing factual information in regard to the matter to the Case Managers for them to consider the need for excluding the doctor from work, and then collate a progress report for the Chief Executive and the Trust Board to review at the end of the exclusion period.

Please be advised that the Trust cannot exclude a doctor for more than four weeks at one time. If the Case Managers believes that an extension is required, they must review the matter on a regular basis before any additional four-week periods of exclusions can be enforced.

Immediate Exclusion

An immediate ‘time-limited’ exclusion may be required when:

The doctor’s presence is the workplace is likely to negatively affect the investigation into the raised concern(s);
Any working relationships between colleagues have broken down;
Very serious allegations have been raised.

This exclusion will allow for preliminary consideration of the situation and allow the Trust to obtain advice should they wish to (i.e. from PPAS).

The manager making the decision to exclude must ensure to:

Advise the doctor of their rights, including their rights of representation (e.g., MDS)
Explain, in broad terms (as there may be no formal allegation at this stage), the reasoning to why the exclusion is happening
Agree a date, up to a maximum of two weeks, where a further meeting should be scheduled to discuss the progress of the investigation.

Formal Exclusion

A formal exclusion should only take place after the Case Manager has first considered whether or not there is a case to answer. The Case Manager must then go on to consider whether is reasonable and proper grounds to exclude the doctor.

The Case Manager should seek advice from PPAS before finalising a decision to exclude a doctor. Some examples of where formal exclusion are required:

The doctor’s presence in the workplace is likely to negatively affect the investigation into the raised concern(s);
It is required to offer protection to other members of staff and/or patients that are awaiting the outcome of a pending investigation, when the raised concerns relate to misconduct, poor performance etc.

The Case Manager must consider whether there are any workable alternatives to exclusion, and exclusion should only be imposed if restricted duties, such as non-clinical work would not be appropriate.

When a doctor is advised that formal exclusion is being imposed, it is compulsory for the Trust to share the nature of the allegations, and they should be made aware of the reason(s) why the formal exclusion has been enforced, and why this is considered to be the only way to deal with the case.

There should also be a witness present, where practicable. The formal exclusion should be confirmed in writing as soon as reasonably practicable, and the letter needs to clearly state the effective time and date, the duration of exclusion (for up to four weeks in the first instance), the allegations that have been raised and terms the doctor is obliged to follow during this period. It should be reiterated to the doctor that they are allowed to contact their representative (e.g., MDS) for their advice and support, if required.

Terms of Exclusion

The doctor is still bound by their employment contract, even though they are excluded from the workplace and will be unable to fulfil their required duties temporarily during this time. However, each Trust is likely to have their own ‘Exclusion from Work’ guidance which you should request. This will ensure you are able to understand what the Trust expects from you. Once the policy has been received, MDS can assist you to review the required terms to help ensure you are following the correct procedure.

Rights – What You Can/ Cannot Do During the Exclusion Period

The Trust’s Rights

The Trust has the right to ensure you are complying with your agreed employment contract during this process;
The Trust has the right to expect that you co-operate with the process;
The Trust has the right to share information with other organisation if there are concerns in relation to patients and/or staff members’ safety.

A Doctor’s Rights

A solicitor is allowed to represent you during this process, but be advised they cannot act in a legal capacity;
You have the right to make representations about your exclusion, at any time after receipt of the letter confirming the exclusion, to the designated board member. Doctors usually choose to do this through their representatives.

During exclusion, you should not:

Make contact members of staff within the Trust or patients without express permission from the Trust;
Discuss the exclusion with members of staff or patients;
Access any of the Trust’s premises without permission from the Trust unless it is for the purpose of receiving emergency medical attention;
Perform any clinical duties, if you have been excluded from clinical work.

Further Information/Rights

Any exclusion case should be reviewed every four weeks, at minimum
Any doctor has the right to receive full pay during the exclusion period, further details of this will be included in the Trust’s ‘Exclusion from Work’ policy
Any doctor will be expected to be available for meetings to discuss the matter during your normal contracted hours during the exclusion period
Be advised that you cannot be investigated for the same issue on more than one occasion, but if the Trust have previous concerns regarding your performance in the workplace, it could be considered during the investigation by Case Managers
All employees should still have continued access to Occupational Health, if required
Doctors should still be available for work during their contracted hours, as the Trust have the right to ask you to attend work if required. If time off is needed, doctors should apply for leave in the usual way.

Correspondence with the Trust/ Colleagues

The Trust should ensure that the excluded doctor is regularly updated with the process of the investigation, and advised if any delays arise. This should be in writing; either via letter or email correspondence.

The excluded individual is entitled to keep in contact with friends who are also employed by the Trust if they wish to do so, as a support system during the distressing time. However, under no circumstances should the excluded doctor discuss any investigation details or the reasons for the exclusion with them.

Return to Work

When and/or if it is decided for the doctor to return to work, and the exclusion period has expired, formal arrangements will be made. It must be clearly agreed whether any clinical or other responsibilities will be changed, whether any restrictions on the doctor’s practice will be imposed or if there will be any monitoring arrangements for a specific period of time.