Deepika Raino explores the MHPS and explains why she thinks it needs a reform to ensure it is fair for dental professionals.
Implemented over 16 years ago, the framework for Maintaining High Professional Standards (MHPS) is well overdue a reform.
Forming part of the NHS employment contract for secondary care dental practitioners, the MHPS framework lays down a structure for how investigations into serious concerns about a dentist’s capability/performance, personal or professional conduct, including their health, are carried out.
However, in its current form, rather than promoting fair and efficient investigations, the framework is too loose and inconsistently applied across NHS trusts. This often results in prolonged investigations that can take years to resolve and leaving careers in tatters.
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The process as it stands
Under the current MHPS framework, when concerns about a practitioner have been identified, a case manager (usually the medical director) considers whether the issues raised need investigating. If so, the case manager issues terms of reference and appoints a case investigator to investigate them.
The case investigator has wide discretion. But they should ensure all appropriate witnesses receive interviews, including the dentist under investigation. And that the investigators gather all relevant evidence to the case.
They should ensure they conduct their investigation fairly; they should not positively search for evidence to validate the complaints against the practitioner. Nor overlook any evidence that supports the practitioner.
The case manager then reviews this report and decides if the practitioner will face a formal internal disciplinary hearing. This can sometimes conclude with matters escalating to the General Dental Council.
During this time, the practitioner’s dental practice can have restrictions placed on it, or they can even go under suspension.
Between 2017 and 2021, the average suspension period for those undergoing an MHPS investigation where the suspension had ended was 161 days. This figure does not include those cases where the suspension was still ongoing at the time of the review.
It affects private practice too. The investigation and any applied restrictions must be declared in private practice.
Identifying weaknesses
Unfortunately, the MHPS framework has multiple pressure points. In our opinion it is tipped in favour of the NHS employer.
Our reasons are that, firstly, a wide discretion is given to each NHS trust about how to implement the framework and handle their investigations.
Secondly, if they feel it is justified, they can also change the terms of reference at any time during the investigation. This leads to further investigations and further delays to any conclusion.
Some MHPS investigations take years to conclude. This causes the practitioner to experience significant financial and emotional stress.
Thirdly, whilst the case investigator is often a healthcare practitioner themselves, they may not have the same qualification or experience as the practitioner under investigation. But it is often left up to them to decide whether they should obtain separate clinical advice.
This means in practice that investigations proceed without any input from an experienced practitioner in the relevant field.
‘You must have known’
Working in healthcare themselves, there are also instances where the case investigator knows the practitioner in question. This means they cannot make a truly independent assessment of the case.
In one case an investigator, who was known to the doctor in question, held unusually lengthy meetings that were fraught with leading questions such as: ‘You must have known’.
There was clear evidence that the investigator already prejudged the situation, with phrases like: ‘I just find it inconsistent and incredible that this would have been a mistake’.
It was far from an unbiased investigation. And the doctor likened their experience to an interrogation, rather than an investigation.
On top of this, perhaps most surprisingly, case investigators often have only two days of training. The minimum requirement time for training case investigators is four three-hour sessions.
As the case investigator has a heavy responsibility to ensure they apply adequate checks and balances to an investigation. Two days hardly seems enough for them to gain sufficient experience to understand the potential complexities around procedural fairness. As well as to make career-defining decisions about a practitioner who may find themselves restricted or suspended from their practice for many months or years.
Examples of failure
Inconsistency in the application of the MHPS framework has real-life consequences.
In the case of Kamath vs Blackpool Teaching Hospitals, an investigation into a consultant orthopaedic surgeon, the terms of reference changed considerably over the course of the investigation.
The case investigator, who was a retired physiotherapist, caused confusion over the scope of the investigation. As well as in the conclusions of the investigator’s report. This resulted in exclusion of the doctor from practice for a prolonged period of time.
In the case of Iwuchukwu vs City Hospitals Sunderland NHS Foundation Trust, failings in an MHPS investigation resulted in damages awarded to the doctor for unfair dismissal, race discrimination and victimisation.
These cases demonstrate that MHPS is not working and that the process does not guarantee fairness to the practitioner.
The change that we need
MHPS investigations have high stakes for dentists and other healthcare workers.
The NHS needs to ensure consistency in the way various trusts deploy the framework. It needs stricter timelines for investigations, alongside more experienced, perhaps even legally trained case investigators.
Going further, we also need to see better education offered to the practitioners themselves about the options available to them.
Too few NHS practitioners have knowledge about the MHPS framework, or access to advice about it or even assistance for dealing with it themselves.
Where investigations concern matters of personal misconduct, professional indemnity organisations might not assist.
What can the dentist do?
Getting advice and assistance early is the best option for practitioners under investigation.
Avoid approaching potential witnesses directly. They could see this as interfering with the investigation and lead to further allegations.
Inform the case investigator about potential witnesses and relevant information to consider. Understand the terms of reference and seek regular and periodic updates.
Some trusts will appoint two case investigators, especially if one of the case investigators lacks the relevant clinical knowledge. If your trust does not, ask for two case investigators if you consider this is justified and would minimise the risk of any bias.
Going forward
The framework for Maintaining High Professional Standards is in dire need of overhaul.
Crucial investigations such as these should not be so inconsistent amongst employers. Or performed by individuals with potentially such little training as 12 hours and no specialist knowledge of the dental or medical field concerned.
Careers, livelihoods and the mental health of dentists, are reliant on the successful, professional execution of these investigations.
As the new year lies ahead, we hope it is a year seeing better protections for our NHS keyworkers. The errors in the current state of the MHPS framework must therefore not continue.
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