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Deskilled disciplinary proceedings

19 July 2018
Mr H was a senior consultant general and breast surgeon who worked in a district general hospital. He was recognised by his colleagues as an expert in breast surgery and an informal arrangement was put in place to transfer all patients with breast problems to Mr H. This arrangement was endorsed by the hospital clinical director but was not formally agreed.

A reciprocal arrangement was put in place so Mr H’s general surgery colleagues would take over the care of any patients admitted under Mr H while he was on-call that did not have breast issues.  As a result of this arrangement, Mr H was rarely involved in general surgery operations. 

Mr H received a letter from his employer stating that they were instigating formal disciplinary action against him. The letter alleged Mr H’s general surgical operating technique was felt to be deficient. This followed concerns being raised by Mr H’s general surgical colleagues, who were concerned at his postoperative complication rates in emergency general surgery patients and that he may be deskilling.

Mr H was restricted to non-clinical duties pending an investigation. Mr H contacted Medical Protection for advice and support. 

His employer refused to clearly articulate the reasons for Mr H being restricted to non-clinical duties, given that no concerns had been raised about his breast practice. Despite repeated requests from Medical Protection, the hospital refused to outline the allegations against Mr H.  

Medical Protection made formal representations to the hospital, stating that they had failed to follow their disciplinary process, and in particular fallen foul of a basic tenet of natural justice by not setting out the specific allegations against Mr H.  

The hospital refused to correct the procedural irregularity and Medical Protection proceeded to instruct solicitors to threaten court action (an injunction) against the employer to compel them to comply with fair process.  

While the hospital attempted to articulate the allegations about Mr H’s deskilling in general surgery, they also raised new concerns in relation to his decision-making regarding patients with breast conditions, and suspended Mr H from duty.  

Medical Protection made robust submissions on Mr H’s behalf and, following the threat of court action, the hospital finally particularised the allegations and supplied copies of the relevant patient records.  

Medical Protection accompanied Mr H to multiple meetings with senior hospital management, and an investigatory meeting following the preparation of a detailed written statement once the allegations were articulated.

Expert opinion 
The hospital instructed an independent expert surgeon to review a selection of case notes. In short, the only criticism was in relation to record-keeping and there appeared to be no issue with Mr H’s surgical performance and abilities.

Medical Protection engaged with the hospital and the expert to ensure a productive dialogue, enabling the hospital management team to better understand the subtleties involved in managing breast patients, and the different skill set required for breast surgery vs general surgery.

The investigation concluded that the concerns did not warrant ongoing suspension. Medical Protection made representations to the employer that the suspension should be lifted and were required to again threaten legal action, which forced the employer to lift the suspension. Mr H was able to return to clinical practice following further negotiation with the employer.

It took two years for the case to reach a conclusion. The external legal costs of ensuring that fair process was followed, and that there was acceptable decision making in this case, were significant.

Learning points
  • The importance of clear medical records cannot be overstated. Mr H may have avoided much of the criticism of his breast practice if more detailed notes had been made that set out his rationale for surgery in each patient. Mr H was ultimately commended on his acceptance that his clinical records had been lacking in detail and the steps he took to address this. 
  • It is important to seek advice early from appropriate professional organisations if you are in difficulties. If you are in doubt, contact Medical Protection for advice.
  • Clear communication with seniors and managers in your organisation can help avoid escalation to formal disciplinary action or suspension from duties.  
  • The effect that a disciplinary process can have is devastating and Medical Protection’s team of medicolegal advisers are on hand to ensure members have robust advice, support and advocacy through these complex procedures.