By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 6 January 2017
Summary: The National Clinical Assessment ‘Service’ (NCAS – previously known as the National Clinical Assessment Authority) is an important but little known NHS quango that was established in 2001. It purportedly helps to manage poor medical performance but is implicated in the mistreatment of whistleblowers, as I shall set out below. NCAS agreed in 2015 to review its processes with respect to whistleblowers, but appears to have resisted reform. This is more evidence of the ineffectiveness of the Freedom to Speak Up Review.
NCAS was created on the back of the Chief Medical Officer’s paper “Supporting Doctors, Protecting Patients” 1 This proposed that there should be speedier, more standardised processes for dealing with poor medical performance in the NHS.
The government in fact took the opportunity to remove doctors’ rights of external appeal: “we are intending to abolish the “Paragraph 190” rights of appeal that are still held by certain doctors and dentists, replacing this right with a process internal to the employing organisation”. 2
Some might say this was part of a long term strategy of managerialism and deliberate weakening of the power of frontline professionals within the NHS.
The plight of suspended doctors was repeatedly raised in parliament, for example by Baroness Knight:
“I know of a case in which the wife of a suspended hospital doctor was dying of cancer in the same hospital and, because of his suspension, he was not even allowed to visit her.”
“Even if all the doctors were guilty, there is no justification for treating them in that way. Even felons who commit the worst crimes in the criminal calendar are treated better than those trained and dedicated hospital doctors. However, the overwhelming majority of them are not guilty; they are found to be innocent of all charges. In the debate last year, I stated that out of 201 cases of suspended doctors that I knew of, only 25 were subsequently found to be guilty of the charges against them. I repeat: only 25 out of 201 were found to have acted wrongly. Some of the remaining 176 must wait years to be cleared.” 3
Establishing NCAS was part of the government’s claims that it wanted to “offer support and help to put things right where possible rather than a regime of punishment.” 2
NCAS describes its role thus:
“NCAS works to resolve concerns about the practice of doctors, dentists and pharmacists by providing case management services to health care organisations and to individual practitioners. Our aim is to work with all parties to clarify the concerns, understand what is leading to them and make recommendations to help practitioners return to safe practice.” 6
It assesses the behaviour and performance of practitioners deemed to be problematic by NHS organisations. There have been controversies about abuse of this facility by employers to bully doctors, and the validity of NCAS’ method and assessments. 7 8
Crucially, NCAS also has a role in advising NHS employers who suspend practitioners under procedures euphemistically named “Maintaining High Professional Standards in the Modern NHS” (MHPS) 9.
Under MHPS, practitioners are at the mercy of internal procedures, which in too many cases are just kangaroo courts. As above, MHPS replaced more rigorous provisions that protected doctors against false allegations. It has been criticised thus by a leading employment barrister:
“Without doubt Maintaining High Professional Standards in the Modern NHS, in relation to allegations of professional misconduct, constitutes a downgrading of consultants’ protection which appears to have met surprisingly little resistance and was agreed by the BMA (and the BDA). The most striking features are the abolition of the independent and legally chaired panel to hear serious disciplinary allegations, and the removal of the right of legal representation.” 10
Whenever practitioners are suspended under MHPS they are automatically referred to NCAS, which then supposedly gives their employers advice on adherence to MHPS, general good practice principles and the fair treatment of suspended practitioners. 11 In short, NCAS is supposed to be a safeguard.
However, NCAS has in too many cases proved to be an instrument of reprisal for NHS staff whom bullying managers want to put through the wringer, whistleblowers being a case in point.
Many whistleblowers report that NCAS uncritically rubber stamps NHS employers’ decisions, and stonewalls when whistleblowers report that disciplinary action against them is in fact reprisal for raising concerns.
NCAS’ typical response to whistleblowers’ appeals is to wash its hands, and to claim that it is an advisory body that does not investigate, and so cannot verify what it is told by either employers or referred practitioners.
In fact NCAS fails to follow its own advice when it gives this passive response. This is because its guidance says that employers should instigate parallel investigations into any concerns raised by referred practitioners 12, and NCAS should actively advise employers accordingly.
Quite often, NCAS carries on a correspondence with employers that is not openly shared with referred practitioners. NCAS advises employers to disclose this correspondence, but does not compel them to do so. Many referred practitioners only get to see the full correspondence about their cases by making a Subject Access Request for personal data.
In short, bewildered whistleblowers who find themselves referred based on fabricated allegations of misconduct, mental disorder or poor clinical performance can expect little help from NCAS. The whole experience is often Orwellian and extremely disempowering.
In March 2015 Sir Anthony Hooper issued recommendations for reform of the similarly shabby way in which the GMC treated whistleblowers. 13
In April 2015 I opened correspondence with NCAS, via the CEO of the NHS Litigation Authority (NCAS has been under NHSLA’s auspices since 2013), to ask if NCAS would consider similar changes. 14
After a meeting in September 2015 between whistleblowers and the Director of NCAS, NCAS agreed to review its process and involve whistleblowers.
A whole year then passed with no further contact from NCAS.
A reminder was sent in September 2016, which also pointed out gross failure in NCAS’ handling of Race Equality issues, which had by then been revealed by an FOI disclosure:
NCAS promised to provide a response some time in October 2016.
On 26 November 2016 the Director of NCAS promised a substantive response within a week, but did not make good this promise.
A further reminder was sent on 17 December 2016.
What came next? You guessed it – more silence.
So the body that helps to pass judgment on sometimes entirely innocent clinicians is itself showing little sign of accountability and professionalism.
There seems to be no urgency about treating whistleblowers fairly, even though this is an important aspect of safety culture, and NCAS purports to be a patient safety agency.
Robert Francis opted for warm and fuzzy trust in people’s better nature when designing his recommendations from the Freedom To Speak Up Review. Two years later, it is clear that some NHS officials are still behaving as badly as ever.
That is two years in which more innocent staff will have been terrorised simply for doing their duty by speaking up.
And two years in which more risk and harm to patients will have been suppressed by smearing and neutralising whistleblowers.
I have written to the Chief Executive of the NHSLA about this further failure and I have copied the correspondence to Robert Francis.
LETTER TO HELEN VERNON CEO NHS LITIGATION AUTHORITY 6 JANUARY 2017:
To Helen Vernon Chief Executive NHS Litigation Authority 6 January 2017
Dear Ms Vernon,
Protection of NHS whistleblowers who are vexatiously referred to the National Clinical Assessment Service
It is almost two years since the Freedom to Speak Up Review was published, when serious failures of whistleblower protection were acknowledged by the Department of Health.
Very seriously, NHS whistleblowers may be vexatiously referred to professional regulators and to NCAS as part of reprisal.
I asked you in April 2015 if NCAS would review its processes and ensure that it treated vexatiously referred whistleblowers more fairly.
I still have no substantive response, despite NCAS promises to act.
I copied you into correspondence in September 2016 about NCAS’ silence and apparent inaction (and also its failure on Race issues). There were subsequently a couple of notes from NCAS assuring me that a substantive response would be provided. The last communication from NCAS was a brief note from the Director of NCAS on 26 November 2016.
However, nothing has materialised, despite a further reminder.
I cannot see that there is any seriousness at all about protecting whistleblowers and treating them fairly, or by extension, protecting patients.
I would be grateful for your help in resolving this situation and to hear from you on how you will ensure a more appropriate response from NCAS.
Dr Minh Alexander
cc Health Committee
Public Accounts Committee
Public Administration and Constitutional Affairs Committee
Sir Robert Francis
When Managers Rule patients may suffer, and they’re the ones who matter
BMJ Editorial by Prof Sir Brian Jarman
1 Supporting doctors, protecting patients. Department of Health January 199
2 Assuring the quality of medical practice: implementing Supporting doctors, protecting patients. Department of Health January 2001
3 Hansard 12 April 2000 Suspension of Hospital Medical Practitioners Bill
4 Hansard 13 January 1999 Hospital Disciplinary Procedures
5 The Management of Suspensions of Clinical Staff in NHS Hospital and Ambulance Trusts in England. National Audit Office. November 2003
7 NCAS performance assessment is seriously flawed. Helen Birch BMJ 3 May 2013
8 Why is bullying rife in the NHS? BMJ rapid response by Dr Stephen Novak 11 May 2015
9 Maintaining high professional standards in the modern NHS. Department of Health February 2005.
10 Employers’ discipline of doctors in the NHS, John Hendy QC from “A Savage Enquiry Re-visited” 2007
11 Handling Concerns about the Performance of Healthcare Professionals:
Principles of good practice. NPSA, NCAS, DH 2006
12 NCAS guidance: Handling concerns about a practitioner’s behaviour and conduct Version 1 – June 2012
“Any counter allegations by the practitioner should be fully investigated separately and robustly.”
13 The handling by the General Medical Council of cases involving whistleblowers Report by the Right Honourable Sir Anthony Hooper to the General Medical Council presented on the 19th March 2015
14 Letter to Helen Vernon CEO NHS Litigation Authority 30 April 2015:
To: Ms Helen Vernon Chief Executive NHS Litigation Authority, 30 April 2015
Dear Ms Vernon,
Re: NCAS handling of whistleblowers who are referred by their employers
I write following the recent publication of Sir Anthony Hooper’s review of the GMC’s handling of whistleblowing issues, and the way in which whistleblowers have been treated.
As Sir Anthony and Sir Robert (Freedom to Speak Up review) have both acknowledged that there is serious persecution of NHS staff who raise concerns; and that this is a substantial and current issue.
It has also been acknowledged by reviews, Health Committee and Public Accounts Committee that the poor handling of whistleblowing results in unnecessary and costly litigation which drains the public purse.
As you will no doubt be aware, in order to manage the risk of malicious counter-allegations against doctors who have raised concerns, Sir Anthony made a number of new and important recommendations on how the GMC should improve its
procedures; including suggesting that all referrals should be signed by registered doctors, and should include a statement of truth.
He also recommended that organisations should declare in their referrals whether the referred practitioner has raised concerns.
There are three specific areas on which I would be grateful if you could comment:
Will NCAS, now under the purview of NHSLA, will accept the learning from Sir Anthony’s review, and make the corresponding policy changes necessary to ensure that whistleblowers are treated fairly?
What safeguards do NCAS intend to employ henceforth, to ensure appropriate handling of malicious referrals and untrue allegations by employers against staff who raise concerns?
Will NCAS adopt Sir Anthony’s recommendation that all referrals should be signed by a registered doctor and include a statement of truth, and that organisations are required to declare whether a referred practitioner has raised concerns?
Dr Minh Alexander
Former consultant psychiatrist
cc Sir Jeremy Heywood, Head of Civil Service
Public Accounts Committee