Rethinking disciplinary action in the NHS

Roger Kline is Research Fellow in the Business School at Middlesex University, and was joint Director of NHS Workforce race equality Standard implementation team until last month. Here, he outlines the cost of disciplinary investigations and puts forward a case for more learning and less blame when mistakes are made.

No one knows how much NHS time and energy is wasted on unnecessary disciplinary investigations, suspensions, hearings, and appeals, but it is a lot. When the National Audit office took a look at one small aspect of the cost in 2003, they found 1,000 clinical staff suspensions averaging 47 weeks for doctors and 19 weeks for other clinical staff at a cost of £40 million in just one year.

The total cost of unnecessary disciplinary investigations, suspensions, hearings, and appeals for all staff groups are included, and is many times higher today, especially when supplemented by unnecessary referrals to professional regulators and the additional cost of related sickness absence, staff cover, early retirement and turnover.

In too many organisations moving to a formal investigation has become the default position without there being proper consideration as to whether that is necessary.

The biggest cost of all is the impact on patient care. Unnecessary disciplinary investigations and hearings risk creating an environment where the response to a mistake or sub-standard behaviour is not “how do we prevent it happening again” but “who is to blame.” The steep authority gradients in much of the NHS as a whole, and within individual occupations, exacerbate the problem. As Mary Rowe explained nearly two decades ago, when “the organisational culture is too hierarchical and oriented towards punishment (it) may inhibit willingness to act or come forward.” An environment of blame is toxic for patient care and safety.

None of this means that there will never be a need for NHS disciplinary investigations or indeed suspensions or sanctions. But in too many organisations moving to a formal investigation has become the default position without there being proper consideration as to whether that is necessary.

There is very significant variation between NHS Trusts as to the likelihood of staff being disciplined or suspended. We know it is several times more likely that staff will enter disciplinary investigations in some trusts compared to others. We also know from the NHS Workforce Race Equality Standard 2016 Data Analysis Report for NHS Trust that disciplinary action is much more likely for staff from a Black and Minority Ethnic (BME) staff background. Yet there is no evidence that greater levels of disciplinary investigation and action in healthcare lead to improved care.

So what can be done to get the balance right?

Moving from blame to learning

Eighteen months ago I asked “Can a simple patient safety tool help the NHS end its ‘blame culture’?”

I suggested that it was time to refresh the almost forgotten NHS Incident Decision Treeand combine the research evidence about the reasons for the disproportionate disciplining of BME staff in the NHS to create a new approach to tackling disciplinary action which would benefit all staff, organisations and patients.

The Incident Decision Tree was a by-product of Liam Donaldson’s landmark 2003 report ‘An organisation with a memory‘ It was a simple but sophisticated means of asking a series of structured questions about an individual involved in a patient safety incident with a view to deciding if suspension was appropriate.  The Incident Decision Tree uses very simple algorithm, to ask four sequential ‘tests’ when a patient safety incident occurred:

1. Did the member of staff intend to cause harm?
2. Did ill health or substance abuse cause or contribute to the patient safety incident?
3. Were protocols and safe working practices adhered to?
4. If protocols were not in place or were ineffective, how would someone from the same area of activity and possessing comparable qualifications and experience have been likely to deal with the situation?

The NPSA guidance then addressed the issue of whether to suspend staff when something goes wrong:

“We know from research carried out in the NHS and in other industries that systems failures are often the root cause of safety incidents. Despite this, where a serious patient safety incident occurs in the NHS, the most common response is to formally suspend the staff involved from duty and then deal with them according to disciplinary procedures. This route can be unfair to employees and divert managers from identifying contributory systems failures. Suspension of key employees can also diminish trusts‘ ability to provide high-quality patient care.”

Disproportionate disciplining of BME staff

In researching the causes of disproportionate disciplinary action in the NHS against BME staff, Archibong and Darr (2010) found in their report NHS Employers that

“….line managers found it difficult to deal with issues relating to disciplinaries and there were often inconsistencies in the application of disciplinary policies. It was acknowledged that the informal stage of the disciplinary process was critical in sorting out minor issues and that some managers were hindered in this process by a lack of confidence in applying informal strategies with BME staff. It was perceived that managers were more likely to discipline BME staff over insignificant matters and that disciplinary concerns involving staff from minority ethnic backgrounds were not always considered to have been dealt with fairly and equitably by human resources managers.”

“It was agreed that performance issues were not addressed in a timely fashion, often with a lack of effective feedback, performance appraisal, support and monitoring of progress with regard to BME staff. There was also a sense that line managers were incorrectly using a disciplinary policy to address performance issues. Part of the problem, it was perceived, stemmed from some managers not being equipped with the relevant skills and knowledge to be able to manage a diverse workforce and to deal effectively with conflict situations.”

Archibong and Darr highlighted the difficulty some managers had in conducting the same informal conversations with BME staff that they would have with white staff about their conduct, standard of work or mistakes. Some trusts have carried out root cause analyses of the differential treatment and have confirmed this is a significant problem. Some individual NHS trusts, in response to such evidence, have introduced a form of accountability which requires local managers to demonstrate that commencing a disciplinary investigation is really the appropriate step to take (for all cases not just those of BME staff).

How this is done varies between organisations, but all use what the HR Director for Barts Health calls a “triage” system to determine whether a proposed disciplinary investigation is really necessary or inappropriate. Increasingly those questions have been formalised into a checklist which combines Incident Decision Tree principles with what the research suggests is the particular challenge around BME disciplinary cases. I summarised this approach in the “what works” section (pp 110-143) of this year’s NHS workforce Race Equality Standard 2016 Data Analysis Report for NHS Trusts.

Once a disciplinary investigation commences, it is very distressing for the member of staff concerned even if they are cleared of any allegation.

There are other initiatives which can be helpful in removing the need for disciplinary investigations when the real problem is inadequate induction, supervision or support, especially for newly recruited nurses or staff trained overseas.

Finding fault

Once a disciplinary investigation commences, it is very distressing for the member of staff concerned even if they are cleared of any allegation; it is very time consuming for managers and HR; it can be demoralising for colleagues if they think the processes are unfair; and can run the risk of reinforcing blame, not a learning culture.  Investigations can easily lead to “tunnel vision”, where the determination to find fault will inevitably eventually unearth some shortcoming, as it would with any member of staff.

What the NHS organisations adopting this different approach have in common is

• a determination to avoid, wherever possible, suspension and disciplinary action unless absolutely necessary and to prioritise learning how to prevent future shortcomings rather than individual blame
• an acknowledgement that excessive disciplinary action may be taking place in respect of staff from all backgrounds and especially, unwittingly or otherwise, from BME backgrounds
• accountability of decision makers, using data to check if change is underway
• an emphasis on ensuring that, within induction, new staff (whatever their origins but especially if trained overseas) understand the trust values and are given support over time
• early intervention by trained and committed senior staff to distinguish between blame and accountability is important, using a decision tree type approach.

NHS disciplinary processes do generally state their purpose is primarily to help improve the practice or behaviour of NHS staff, not to punish them. In practice this is not always the case. Too often the disciplinary process itself (including suspension) is an act of punishment whose focus and outcome is often not on learning and improvement, and which instead obscures systemic organisational failings in the name of holding individual staff to account. Disciplinary processes often confuse “accountability” and “blame”.

This different approach will not prevent the need, sometimes, for disciplinary investigations and sanctions. But early results suggest the use of a “triage” or “filter” to prompt reflection and challenge prior to any disciplinary investigation starting can make a very significant improvement to the prevailing practices in large parts of the NHS, to the benefit of staff, patient care and safety, and the organisation itself.