When a concern about a doctor is also being considered by the GMC and/or the police/counterfraud, should internal proceedings be put on hold pending the outcome of the regulatory/criminal proceedings? 

In short, the answer is “sometimes, but not always”; employers have a wide discretion about how to proceed, and should take a pragmatic approach, bearing in mind that: 

1. an employee’s right to defend themselves in criminal proceedings may justify deferring the employment process, so that those criminal proceedings are not prejudiced, however 
2. employers cannot be expected to stay their hand indefinitely, given the cost and detrimental impact this may have on the service and patient care. 

As we will see, it is rare that a Court will intervene to stop an employer proceeding with its internal process in such scenarios. 

In determining whether internal proceedings should be stayed pending the outcome of any external process, employers must consider their contractual obligations to the doctor, and the practicalities associated with continuing or staying an internal process. We consider these areas below. 

The contractual position 

• MHPS and MPAF 

Maintaining High Professional Standards (MHPS) and the Medical Practitioners Assurance Framework (MPAF) set out the process to be followed by employers in investigating concerns about doctors employed in the NHS and in private healthcare respectively.  

MHPS 

MHPS is mandatory for NHS Trusts and advisory only for Foundation Trusts, though most FTs are committed to following it. The Majority of Trusts have their own MHPS policy, which implements the national MHPS policy.  

Under Clause 12 of part II of MHPS (“Action when investigations identify possible criminal acts”): 

“When an employer’s investigation establishes a suspected criminal action in the UK or abroad, this must be reported to the police. The Trust investigation should only proceed in respect of those aspects of the case which are not directly related to the police investigation underway. The employer must consult the police to establish whether an investigation into any other matters would impede their investigation...” 

MPAF 

For private healthcare organisations in the Independent Healthcare Provider Network (IHPN), the four MPAF principles [insert hyperlink to MPAF Refresh 4 principles page] are individually incorporated into contracts but these are less specific than the provisions of MHPS.  

In short, under MHPS and MPAF, employers should consult with the police and should carefully consider any guidance provided or requests made. However, there is no specific contractual requirement to put on hold internal proceedings pending the outcome of any criminal process.  

Both MHPS and MPAF are silent on how to proceed where there are ongoing regulatory processes. 

Disciplinary policy 

The employer’s disciplinary policy may form part of the contract, so employers should carefully consider the wording of its policies when determining how to proceed. Normally, where disciplinary policies address the issue of parallel proceedings, they require consideration of the position and consultation with the police and do not preclude the employer from completing its internal process where there are ongoing criminal or regulatory proceedings. 

Implied term of trust and confidence  

Employers have a general contractual duty not to act in a way which would breach the implied term of trust and confidence. In a leading case on this concerning parallel criminal proceedings (R v BBC ex parte Lavelle [1983] 1 WLR 23) Justice Woolf stated: 

“...while the court must have jurisdiction to intervene to prevent a serious injustice occurring, it will only do so in very clear cases in which the applicant can show that there is a real danger and not merely a notional danger that there would be a miscarriage of justice in the criminal proceedings if the court did not intervene.” 

This case has been followed more recently in the case of North West Anglia NHS FT v Gregg [2019] EWCA Civ 387.  

Dr Gregg was facing both criminal and regulatory proceedings in parallel to an internal MHPS process in relation to patients who had died under his care. 

He obtained an injunction from the High Court which prevented the Trust from continuing its investigation until after the police had completed their investigation and the CPS had decided whether or not to charge him. 

However, that injunction was lifted by the Court of Appeal, which held that an employer does not usually need to wait for the conclusion of any criminal proceedings before dismissing an employee or commencing or continuing internal disciplinary proceedings.  

The Court of Appeal’s decision followed the Lavelle case. It held that the Trust’s desire to progress its own internal disciplinary investigation without waiting for the conclusion of the separate police investigation, was not calculated to destroy or seriously damage its relationship with Dr Gregg, it had reasonable and proper cause for wanting to conclude the matter, and there was no evidence that this would give rise to a real danger of a miscarriage of justice in the criminal proceedings. 

In short, it is unlikely that continuing with an internal process will breach the implied term of trust and confidence; this is only the case if there is a real risk of serious injustice, which is extremely rare. However, it must be borne in mind that evidence gathered in the internal process is disclosable to those carrying out the criminal investigation, including comments mad e by the doctor in the internal process, without the benefit of advice from a criminal lawyer.

Summary of contractual position 

In summary, where continuing with an internal process could prejudice a criminal investigation, or where it might effectively result in a doctor incriminating themselves in a criminal process employers should normally allow the criminal process to take precedence, otherwise any dismissal could be found to be unfair..  

This could be the case for example where a doctor is accused of sexual assault or fraud. Of course, where such allegations are considered at a disciplinary hearing, the employer will be basing its decision on the balance of probabilities rather than beyond reasonable doubt. As such, where an allegation is upheld at a disciplinary hearing, that outcome itself will not normally incriminate the doctor in any criminal proceedings. However, requiring the doctor to participate in an internal process first, without the benefit of advice and support from a criminal lawyer, might potentially be unfair, given that any evidence gathered will be disclosable in the criminal process.  

This is a finely balanced decision and legal advice should be sought if employers are unsure about how to proceed. 

If an employer is concerned that proceeding with an internal process could lead to the criminal investigation being prejudiced, or potential self-incrimination by the doctor, and/or the employer has other reasons for wishing to take action (such as a genuine concern about reputational damage or damage to public confidence in an employer’s services caused by information from criminal proceedings coming under public scrutiny), it may be that an alternative process can be undertaken which does not involve considering the disciplinary allegations themselves.  Again, it might be helpful to seek specialist legal advice in such scenarios. 

There is no contractual prohibition on carrying out an internal process whilst regulatory proceedings are underway, and indeed it is rare that employers stay their internal proceedings pending the outcome of GMC or other regulatory proceedings; normally referrals are only made at the end of an internal process if the employer considers there is a fitness to practice concern. If they are made earlier, the GMC tend to await the outcome of the internal process before deciding whether to investigate any fitness to practice concerns. Where fitness to practice concerns are investigated in parallel, given that the GMC applies different tests from those relevant to employers, this is unlikely to be the subject of a successful legal challenge. 

Practicalities 

There are often practical reasons why employers wish to complete their internal process before the outcome of any criminal and/or regulatory process. For example, where a criminal/regulatory process is unlikely to conclude in the near future and the doctor is not working, or carrying out limited duties and receiving full pay in the meantime, and where other staff, patients and/or the delivery of services are affected. Such decisions can normally be justified given the employer normally has a need to take action and will be considering different factors from those being considered in the regulatory/criminal proceedings.  

Conversely, there may be occasions when it would be more practical for the employer to await the outcome of regulatory and/or criminal proceedings before carrying out/concluding its own process. This may be the case where the employer does not have the time or resources to investigate the issues itself, does not have access to the relevant evidence or witnesses (e.g. because it took place outside the workplace), where the criminal/regulatory proceedings are close to conclusion, and/or where a doctor is on zero pay and there is no risk to other staff or patients in delaying the internal process. 

If employers are uncertain about whether to wait or proceed with an internal process we recommend seeking legal advice on the risks and benefits of each approach so that an informed decision can be made. 

Summary  

In summary, in deciding whether or not to put internal proceedings on hold pending the outcome of parallel criminal or regulatory proceedings, employers should carefully consider both the express and implied terms of the doctor’s contract and the practicalities of pausing/waiting.  

All elements that form part of the contract (including MHPS/MPAF and the disciplinary policy) need to be considered and the employer should discuss the situation with the police before continuing.  

Ordinarily an internal process may proceed unless there would be a real risk to the doctor or to the integrity of the investigation in the criminal proceedings. However, the employer should take a pragmatic approach, bearing in mind factors such as: 

• The resources available to it – does it have the time, funds and staff to investigate the issues? 
• The doctor’s specialism and nature of their work – how complicated are the issues to be investigated and who is best placed to look into them? 
• The nature of the allegations being investigated by the police – how serious are they and do they concern actions inside or outside of the workplace? 
• The likely length of any postponement to internal proceedings – unless a doctor is excluded without pay most employers prefer to proceed with their own process rather than await the outcome of a lengthy criminal process, and 
• whether the criminal process could be jeopardised by proceeding rather than postponing –bearing in mind also the need to comply with Just Culture principles, and adopt a proportionate approach, which is compassionate to all involved. 

Clearly patient safety must be prioritised, and the safety of others should also be considered where that is a factor, but such risks can normally be managed through restrictions or exclusions on their practice.  

How Capsticks Can Help 

We are specialists in the application of MHPS and MPAF and our employment advisors can offer tailored advice on the risks and benefits of pausing or proceeding with internal proceedings where there are parallel regulatory or criminal proceedings. We can also help employers ensure their decisions are aligned with the need to follow a Just Culture approach.  

For further information on how we might assist your organisation, please contact Laura Horovitz.