KB-2025-001016 - [2025] EWHC 2023 (KB)

MHPS is divided into several parts. Part I deals with “Action when a concern arises”; Part II deals with “Restriction of practice and exclusion”; Part III deals with “Conduct hearings and disciplinary matters”; Part IV deals with “Procedures for dealing with issues of capability”; and Part V deals with “Handling concerns about a practitioner’s health”.

The preamble to MHPS notes that the framework builds on a number of elements including “tackling the blame culture – recognising that most failures in standards of care are caused by systems’ weaknesses not individuals per se”. Further, that the approach set out in MHPS “recognises the importance of seeking to tackle performance issues through training or other remedial action rather than solely through disciplinary action”.

The introduction to Part I (Action when a concern arises) states that “The management of performance is a continuous process which is intended to identify problems. Numerous ways now exist in which concerns about a practitioner’s performance can be identified”. At paragraph 3, it is stated that: “All NHS bodies must have procedures for handling serious concerns about an individual's conduct and capability”, defining a “serious concern about capability” as arising “where the practitioner’s actions have or may adversely affect patient care”.

Paragraph 4 provides that:

“All serious concerns must be registered with the Chief Executive and he or she must ensure that a case manager is appointed. The Chairman of the Board must designate a non-executive member "the designated member" to oversee the case and ensure that momentum is maintained. All concerns should be investigated quickly and appropriately. A clear audit route must be established for initiating and tracking progress of the investigation, its costs and resulting action. However the issue is raised, the Medical Director will need to work with the Director/Head of HR to decide the appropriate course of action in each case. The Medical Director will act as the case manager in cases involving clinical directors and consultants and may delegate this role to a senior manager to oversee the case on his or her behalf in other cases. The Medical Director is responsible for appointing a case investigator”.

It is noted that where bodies do not have a Medical Director,

“the Chief Executive should designate a senior clinical manager to perform the role assigned to the Medical Director in these procedures and ensure that they are appropriately trained”.

Part I of the MHPS goes on to discuss the involvement of the NCAA (now the PPA), which can provide a range of advice. At paragraph 8, it is stated that:

“The first task of the case manager is to identify the nature of the problem or concern and to assess the seriousness of the issue on the information available and the likelihood that it can be resolved without resort to formal disciplinary procedures”.

After discussion with the NCAA, the case manager “must decide whether an informal approach can be taken to address the problem, or whether a formal investigation will be needed.”

The role of the “case investigator” is set out in some detail. This culminates in submitting a report to the case manager. At paragraph 17, it is stated that:

“The report of the investigation should give the case manager sufficient information to make a decision whether:

• there is a case of misconduct that should be put to a conduct panel;

• there are concerns about the practitioner's health that should be considered by the NHS body's occupational health service;

• there are concerns about the practitioner's performance that should be further explored by the National Clinical Assessment Authority;

• restrictions on practice or exclusion from work should be considered;

• there are serious concerns that should be referred to the GMC or GDC;

• there are intractable problems and the matter should be put before a capability panel;

• No further action is needed”.