After Reuser v UHB and Macanovic v Portsmouth: New rules to deter malicious referrals of whistleblowers to the Practitioner Performance Advice service

By Dr Minh Alexander retired consultant psychiatrist 7 December 2022

This post reports on improvements in procedural safeguards for whistleblower doctors who are punitively referred to the General Medical Council and the Practitioner Performance Advice service.

Whistleblowing medics can be victimised through malicious referrals to the General Medical Council.

There is another NHS body which is also used by abusive medical managers to harm whistleblowers: the Practitioner Performance Advice service (formerly known as the National Clinical Assessment Service, NCAS).

It is senior doctors who refer other doctors to the PPA.

The Practitioner Performance Advice service gives NHS trust managers advice on how to apply the Maintaining High Professional Standards (MHPS) procedure – the NHS method for dealing with medical incapability and misconduct.

Under MHPS, employers must liaise with the PPA to explain what they are doing, in order to progress the MHPS process.

The PPA has no investigative role. It merely provides advice based on information provided by employers. It may also assess doctors’ performance at the request of employers.

Bad employers may feed false or distorted information to the PPA to engineer suspensions.

The Employment Tribunal described such false and distorted information given to PPA (previously NCAS) in the whistleblowing cases of Mr Tristan Reuser and Dr Jasna Macanovic.

The PPA had not kept pace with procedural safeguards introduced by the GMC to protect whistleblowers, following the Hooper review in 2015.

But based on the continuing cases of employer misconduct involving the MHPS/ PPA mechanism, the PPA has advised that it will enact the following:

Referring employers must provide a statement of truth

Referring employers must declare that there are no omissions in their referral and that the referral is being made in good faith

Employers must explicitly declare if a referred doctor has made public interest disclosures

Employers must declare that they have shared documents with the referred doctor

This broadly mirrors the GMC’s requirements for referring employers. The GMC also added a clause in its referral form requiring the referring senior doctor to consider their due diligence in ensuring that their referral is fair and inclusive:

“…what impartial checks you’ve made to ensure the referral is fair and inclusive.”

This change was made in December 2021, a few months after the GMC upheld complaints that the medical director of University Hospitals Birmingham made a false declaration in his referral of whistleblower surgeon Mr Tristan Reuser.

The formal declarations that the PPA is introducing increase jeopardy for senior doctors who abuse the MHPS/ PPA mechanism to punish and intimidate whistleblowers.

The declarations open a potential door to disciplinary action by the GMC, as happened when UHB’s former medical director referred Mr Tristan Reuser to the GMC and falsely claimed that Mr Reuser had not made public interest disclosures.

The PPA has also introduced a question to employers on whether referred doctors are well enough to undergo a PPA assessment, so that the needs of unwell doctors must be weighed.

In addition, the PPA’s documentation allows for a submission by the referred doctor, so that they can also provide the PPA with contextual information.

For example, any concerns that a doctor might have that they are being referred for improper reasons, such as reprisal for speaking up.

This is an advance, because in the past NCAS/PPA failed to weigh referred whistleblowers’ concerns about reprisal.

It remains to be seen how well all this works, and what the PPA will do in cases where it becomes obvious that whistleblower reprisal is the reason for referral.

But PPA’s formal acknowledgement of whistleblower reprisal is a significant step forward.

This is the most recent correspondence with PPA(NCAS):

Correspondence with PPA March – December 2022 Procedural safeguards for whistleblowers

This is Version 30 of the form that the PPA will require referrers to complete, including a section which the referred doctor can complete (Form B, starting page 10):

PPA Referral for consideration of assessment form V30

Version 30 does not contain an additional, agreed question to the referring manager on whether the referred doctor has made public interest disclosures, but it will presumably be updated.

I asked the PPA to consider allowing referred doctors to submit their evidence directly to the PPA, to avoid any employer tampering or manipulation, such as by falsely claiming that there is no submission from the referred doctor.

This was not agreed on grounds that the referred doctor might not respond reliably, although PPA indicated it would continue considering what further improvements could be made to its process.

“We have also considered whether a practitioner could send us the referral form back directly. Our current position is that referral to Advice for an intervention or assessment takes place as part of an employment relationship and a practitioner may not complete or return the form in a timely manner. However, I do recognise your concern relates to potential extreme scenarios and we will continue to consider whether the process on this could be improved.”

My advice to any whistleblower therefore is to submit evidence through the PPA’s process, via the employer as required, but to also send a copy directly to the PPA.

As is evident, the worst employers are prepared to mislead PPA with false allegations or omission of important information, so it would be wise not to allow them control of whistleblowers’ evidence.

Moreover, employers may conceal any false allegations that they have made to PPA from referred doctors.

In Tristan Reuser’s case, his employer University Hospitals Birmingham NHSFT failed to:

Disclose the MHPS correspondence to him (contravening the MHPS rules)
Disclose the MHPS correspondence to him after a Subject Access Request
Disclose the MHPS correspondence to the Employment Tribunal, even though it was highly relevant to Mr Reuser’s claims.

Mr Reuser resolved this by obtaining the MHPS correspondence through an additional Subject Access Request to what was then NCAS (PPA’s predecessor).

If an employers fails to disclose MHPS documents to a doctor referred to PPA, I would advise the doctor to:

Inform the PPA of this breach

Consider a Subject Access Request to the PPA under GDPR if the employer’s withholding of MHPS documents is persistent.

This is because the worst employers may flout their legal obligations under GDPR, and the Information Commissioner has no powers to compel disclosure from an employer who is determined to act abusively. Instead, individuals have to apply for a court order to release their data and few can afford that. It is less painful and onerous to ask PPA, as opposed to a hostile employer, for the information.

Lastly, it is relevant to point out that the heavy lifting on securing the improvements to PPA’s procedures has largely been done by whistleblowers.

Successive National Guardians since 2016 have been noticeable by their absence, despite the fact that it is part of their job description to identify and challenge barriers to speaking up in the NHS.

Their failure to protect whistleblower doctors from victimisation through abuse of the MHPS process was also despite the fact that the second National Guardian, who was in post for FIVE years, was a doctor. She should have been aware of the abuses.