By Dr Minh Alexander NHS whistleblower and consultant psychiatrist, 21 October 2017
The NHS is infamous for unjust culture and unfair workforce practices.
This is a full update paper on these matters:
I report on longstanding policy failures and provide updated summary statistics on NHS dismissals.
I illustrate the issues through the specific case of Dr John Bestley, former Consultant Psychiatrist and clinical director at the troubled Humber NHS Foundation Trust, who an Employment Tribunal determined was unfairly dismissed for gross misconduct.
Dr Bestley displeased his employer, who did not consider him to be ‘corporate’ enough. He later became caught up in a maelstrom that is familiar to too many. Allegations were made against him, and for far too long remained un-particularised. He was suspended without adequate evidence of review and his suspension continued long after there ceased to be grounds for suspension. He was subjected to a lengthy flawed investigation and then to a heavy handed disciplinary process. Ultimately, at age 52 he was dismissed, which an Employment Tribunal later determined was unwarranted and unfair.
Furthermore, Dr Bestley’s illness of Bipolar Disorder was considerably worsened by the experience, such that he was no longer able to practice. Neither was he eligible for early access to his NHS pension on ill health grounds on account of having been dismissed. His employer, a specialist mental health trust, ought to have been aware of the likely impact on his health.
I do not write this to defend Dr Bestley, who indeed accepts that his behaviour fell short at times. And whilst the Employment Tribunal determined that his dismissal was unfair, it did observe that there had been a history of concerns and that a lesser sanction would have been justified. The key issue is that the system response to Dr Bestley was seriously disproportionate. Dr Bestley has been brave enough to contact me and share his story despite the fact it is not comfortable for him to do so, in order that some light can be shone on this aspect of NHS dysfunction.
This dysfunction in his case led to serious waste in terms of scarce time, distress to all concerned, hundreds of thousands of pounds being wasted, and the loss of an experienced and expensively trained doctor from the NHS when there had been no concern found about his clinical performance.
The National Clinical Assessment Service (NCAS) is the body that is supposed to oversee suspension processes and advise trusts on best practice. However, the correspondence from NCAS in Dr Bestley’s case shows a typical lack of challenge to the trust. Dr Bestley was simply reduced by NCAS to “Dr 11009”, as it acquiesced to the trust’s actions.
Based on the example of Dr Bestley’s case and others of which I am aware, the National Clinical Assessment Service should in my view stop passively approving unjust suspensions, and provide much more robust challenge to employers.
Moreover, Dr Bestley tried to ensure that lessons were learnt from his case, but the responses from the trust, the General Medical Council and the health watchdog NHS Improvement were all wanting.
NHS Improvement relied on his former employer’s assurances that it had learned lessons. Laughably NHS Improvement claimed that the trust, rated ‘Inadequate’ on safety by the Care Quality Commission and mired in a number of recent scandals, was a learning organisation generally.
The Care Quality Commission acknowledged in a 2016 inspection report that the trust had suspended a large number of staff since 2014, but claimed that the Trust followed its procedures correctly. It did not acknowledge that an Employment Tribunal had determined that the trust had unfairly dismissed a senior doctor.
Stories such as this illustrate the need for reform of NHS disciplinary process, better central tracking of NHS staff suspensions and Employment Tribunal outcomes, and accountability for how public money is spent.
It is a serious failure that fourteen years after the National Audit Office’s 2003 report on NHS mismanagement of staff suspensions, little has been done to properly implement NAO’s recommendations.
The NHS needs to recognise that suspensions are a damaging Human Resources emergency, that their expeditious resolution must be prioritised to limit the serious harm done to employees. This is the more so where employees have pre-existing disabilities or vulnerabilities that are likely to increase the harm inflicted.
NHS Pension policy also needs to be adjusted so that employees who are found to have been unfairly dismissed should have pension rights such as access to early ill health retirement restored. It is unjust if the NHS not only inflicts avoidable, serious injury on its staff through poor human resources practice, but also deprives them of the pension they would have been entitled to had they not been wrongfully dismissed.
Regulators such as NHS Improvement and the Care Quality Commission should also take injustices against the workforce much more seriously when assessing NHS bodies’ governance, instead of closing ranks and or obfuscating as they did in Dr Bestley’s case.”
This is the Employment Tribunal judgment in Dr Bestley’s favour, which found that Humber NHS Foundation Trust dismissed him unfairly, suspended him for far too long and thereby caused serious injury to his health:
This is the 2003 National Audit Office report on the mismanagement of suspension in the NHS:
NAO found that doctors were suspended for an average of 47 weeks. NAO also concluded:
“A number of exclusions occur as a result of a breakdown in team working or personality clashes where there appears to be no risk to patients. Where there have been patient safety incidents, trusts have sometimes excluded clinicians despite evidence of systemic failures rather than individual shortcomings.”
NAO’s recommendations have never been implemented properly or at all.
In particular the NAO advised the Department of Health to:
“Extend its monitoring to all long term exclusions of clinical staff, not just formal suspensions of doctors”
“Require Strategic Health Authorities to scrutinise the length and costs of exclusions as part of their performance management work”
These tasks remain studiously neglected.
I have challenged CQC about its reporting of suspension practice at Humber NHSFT.
I will submit the full report to Public Accounts Committee as further evidence of insufficient learning by the NHS and specifically as additional evidence in support of a cross-sector review of whistleblowing.
UPDATE 9 JANUARY 2018
This was the response from Ted Baker CQC Chief Inspector of Hospitals on 1 November 2017:
“Dear Dr Alexander,
On behalf of Professor Ted Baker, Chief Inspector for Hospitals at the Care Quality Commission (CQC), thank you for your email of 20 October 2017.
CQC will keep the suggestions you make under consideration. We do not intend to engage in further correspondence with you on this matter.
Correspondence Secretary, Governance & Private Office, Care Quality Commission”
NCAS was responsible for scrutinising the use of suspension in Dr Bestley’s case.
Although, the Employment Tribunal determined that he was unfairly kept suspended for too long with grievous damage to his health, and the trust had to pay him almost £300K compensation, NCAS says it did its job:
At the DH launch of the disappointing Freedom To Speak Up Review 11 Feb 2015
Whatever happened to Jeremy Hunt’s Just Culture Task Force?
The NHS in the Employment Tribunal: A five month sample
National Clinical Assessment Disservice
NHS Gagging: How CQC sits on its hands