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What are the requirements of trusts to protect staff’s mental health and the potential Employer’s Liability implications if they fail to safeguard?

The Improving People Practices agenda has received another impetus injection this week as NHS England’s Chief People Officer, Prerana Isaar, wrote to trust leaders and HRDs on Tuesday. Prerana instructed them to ensure that their review of all disciplinary procedures, against recommendations made by Baroness Harding last year, is done by the end of this financial year – and formally considered at Board level.

As well as recapping the policy review work that should, by now, be well underway, Suzanne Nulty summarises the requirements imposed on trusts to protect staff’s mental health and wellbeing throughout investigations and disciplinary processes; and Rachel Kneale considers the implications in terms of work-related stress (or other personal injury claims) if there is a failure to do so.

Recap – the requirement to review investigation and disciplinary processes

Since Spring 2019, we have been assisting our clients to review and improve their investigation and disciplinary cultures and practices in line with instructions from Baroness Harding’s letter dated 24 May 2019 to Trust and foundation Trust Chairs and Chief Executives.

Readers will remember that the requirements followed a review by NHS England (“NHSE”) which found failings in the handling of the disciplinary case of Mr. Amin Abdullah who was a nurse at Imperial College Healthcare NHS Trust. Prior to his appeal against his gross misconduct dismissal in February 2016, Mr. Abdullah tragically committed suicide. As well as procedural failings, NHSE found that the treatment of Mr. Abdullah throughout the investigation and disciplinary process had been poor which had severely damaged his mental health. 

Having reviewed that specific case, NHSE subsequently widened its review of practices within the NHS and identified more widespread concerns about poor practice and a lack of emphasis on compassion for staff and safeguarding their health and wellbeing during, what can naturally be, very stressful circumstances.

Consequently, A 7-point guide (“the Guidance”) was produced dealing with both procedural and pastoral issues which advocated:

  • Adherence to best practice – policies/procedures in line with ACAS and regulatory guidance (e.g. NMC and GMC / GDC).
  • Application of rigorous decision-making methodology – objective and independent decision-making, considering alternatives to ‘formal’ procedures, plurality of decision making.
  • Training and competency of those undertaking roles within the processes – case managers, case investigators, and panel members, as well as supporting HR staff, should have up-to-date training, and be sufficiently capable.
  • Assignment of sufficient resources for those carrying out the processes – including being given the time, materials and support needed to deliver a fair, efficient and independent process.
  • Care to be taken in relation to suspensions/exclusions. Again, such decisions should not be made by a single individual. They should only happen if it is proportionate in light of the issues and should be seen as a ‘last resort’. Where they do happen, there should be regular review and communication.
  • Safeguarding of the health and welfare of people involved – arguably this includes witnesses and, potentially, those conducting the process. Clearly, though, the main focus will be on the person at the centre of the allegations and their health/welfare should be paramount and regularly assessed throughout the process including by using occupational health services etc. There should be regular communication which is clear and compassionate.
  • Board level oversight. Where they do not already exist, Trusts should introduce mechanisms for the collation/recording of data relating to investigation and disciplinary procedures which should be regularly and openly reported at board level.

What’s been happening since 2019?

Since the original guidance was issued last year, we have worked with many Trusts who have taken up the challenge and not only reviewed their policies and procedures but, also, the more nebulous concept of “culture”, with many seeking to move towards a just and learning culture and adopting compassionate leadership principles. We have assisted them to deliver against all aspects of the Guidance by:

  • Briefing their Boards as to their specific ongoing obligations under the Guidance (in terms of receiving and monitoring data) and to ensure there is understanding, from the top down, of the need, more fundamentally, to invest time and resources to safeguard staffs’ safety and wellbeing during investigation and disciplinary processes.
  • Delivering training on investigations and disciplinary procedures to their key staff and decision makers.
  • Working with HR leaders and teams to review policies and working practices including to build in appropriate opportunities for informal resolution where possible.

Imperial College – Zero to Hero?

Imperial College Healthcare NHS Trust was strongly criticised in the enquiries that followed Mr. Abdullah’s death but, is now commended by for its work over the last four years to learn and improve its policy and practices. Indeed, in this week’s communication from NHSEi, other Trusts are urged to heed the shared learning from Imperial and have regard to its exemplar policy.

“The shared learning from Imperial College Healthcare shows the need for us to work continuously and collaboratively, to ensure that our people practices are inclusive, compassionate and person-centred, with an overriding objective as to the safety and wellbeing of our people.”

Latest call for action

If any Trust still has work to do in relation to its review(s), there is little time to waste now that NHSE has specified that the reviews should be completed by the end of the financial year. Further, it should be noted that Ms. Isaar has “urged” that the reviews are “formally discussed or minuted as a public board or equivalent” and has “suggested” that updated policies are available on Trust’s public websites, also by the end of the financial year.

If you require any assistance or guidance on these tasks, please contact your usual adviser or Suzanne Nulty, Kate Shute, or Emlyn Williams.  

In the meantime, read NHS Employers’ guidance on Implementing a Just and Learning Culture.

Potential Employer’s Liability implications if Trusts fail to safeguard staff from mental ill health

In the four years to 2019, 317 claims were notified to NHS Resolution worth £27,479,003 in relation to staff stress and bullying. This does not include payments for sickness absence, replacement staff or the resources and costs of investigation and management.

In its report Being Fair NHS Resolution also emphasises the need to move away from a blame culture when things do not go as expected in health care settings. In order to learn from incidents to prevent the same things happening in the future, investigations and processes should be designed to support the staff to help them work safely. Focusing on improving patient safety and experience, and involving users of care services as well as staff in safety investigations is key.

Read the full NHS Resolution leaflet ‘Did you know: Being fair’

 

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