Procedure for the identification, management and support of primary care performers and contractors whose performance gives cause for concern

Standard operating policies and procedures for primary care

First published:27 March 2013

Prepared by Primary Care Commissioning (PCC)

Publications Gateway Reference No: 00011(s)

Contents

Contents...... 3

Purpose of procedure...... 4

Scope of the procedure...... 6

Procedure aims and objectives...... 8

Definitions of underperformance...... 8

Procedure...... 10

Information governance...... 54

Resourcing local procedures...... 55

Annex 1: Abbreviations and Acronyms...... 56

Annex 2: Removal or inclusion with conditions/contingent criteria that must be considered..59

Annex 3: NHS CB risk matrix...... 64

Annex 4: Residual risk priority...... 67

Annex 5: Legislation Governing the Management of Medical, Dental and Opthalmic Performers Lists and Contracts 68

Annex 6: Legislation Governing the Management of Pharmaceutical Lists and the Provision of Pharmaceutical Services 70

1

Purpose of procedure

1)The NHS Commissioning Board (NHS CB) is responsible for direct commissioning of services beyond the remit of clinical commissioning groups, namely primary care, offender health, military health and specialised services.

2)This document forms part of a suite of policies and procedures to support commissioning of primary care. They have been produced by Primary Care Commissioning (PCC) for use by NHS CB’s area teams (ATs).

3)The policies and procedures underpin NHS CB’scommitment to a single operating model for primary care – a “do once” approach intended to ensure consistency and eliminate duplication of effort in the management of the four primary care contractor groups from 1 April 2013.

4)All policies and procedures have been designed to support the principle of proportionality. By applying these policies and procedures, area teams are responding to local issues within a national framework, and our way of working across the NHS CB is to be proportionate in our actions.

5)The development process for the document reflects the principles set out in Securing excellence in commissioning primary care[1], including the intention to build on the established good practice of predecessor organisations.

6)Primary care professional bodies, representatives of patients and the public and other stakeholders were involved in the production of these documents. NHS CB is grateful to all those who gave up their time to read and comment on the drafts.

7)The authors and reviewers of these documents were asked to keep the following principles in mind:

  • Wherever possible to enable improvement of primary care
  • To balance consistency and local flexibility
  • Alignment with policy and compliance with legislation
  • All policies and procedures have been designed to support the principle of proportionality. By applying these policies and procedures, Area Teams are responding to local issues within a national framework, and our way of working across the NHS CB is to be proportionate in our actions.
  • Compliance with the Equality Act 2010
  • A realistic balance between attention to detail and practical application
  • A reasonable, proportionate and consistent approach across the four primary care contractor groups.

8)This suite of documents will be refined in light of feedback from users.

This document should be read in conjunction with:

  • Policy for the identification, management and support of primary care performers and contractors whose performance gives cause for concern
  • National Performers List Policy
  • Assurance frameworks for primary dental, eye care, medical and pharmaceutical services

1

Scope of the procedure

This procedure should be read in conjunction with the policy for the investigation, management and support of primary care performers and contractors whose performance gives cause for concern.

The policy and procedure are compliant with the Performers List Regulations 2013 as a result of the current consultation on national performers lists for GPs, dentists and ophthalmic practitioners.

The term primary care performer is used throughout this document to mean medical, dental or ophthalmic performers registered on a performers list for the provision of primary care services to include military health and offender health services.The term contractor is also used throughout this document to mean pharmacy contractors and dispensing appliance contractors (DACs) included in the pharmaceutical list as currently there are no equivalent lists for individual pharmacists or DAC performers.

Section 1 of the document applies to general practitioners (GPs), general dental practitioners (GDPs), ophthalmic medical practitioners (OMPs) and optometrists registered on a performers list for the provision of clinical services in primary care, which includes include military health and offender health services.

Section 2 applies to pharmacy contractors and dispensing appliance contractors (DACs) on a pharmaceutical services list. For ease of use, this procedure will refer to GPs, GDPs, OMPs and optometrists as performers, and pharmacy contractors and DACs will be referred to as contractors. It should be noted that currently there are no equivalent lists for individual pharmacists or DAC performers.

The policy will apply where NHS CB employed doctors, dentists and optometrists are also registered on a performers list, and where NHS CB employed pharmacists or dispensing appliance contractors are on a pharmaceutical list, and are providing services in primary care.

The policy does not apply to NHS CB employed doctors, dentists, optometrists and pharmacists who are providing clinical advice and/or undertaking non-clinical roles within the NHS CB, as performance concerns will be dealt with through HR internal procedures.

It should be noted that pharmacy contractors working under either a Local Pharmaceutical Services (LPS) contract or an Essential Small Pharmacy Local Pharmaceutical Services (ESPLPS) contract are not included in the pharmaceutical list. Any concerns regarding their performance would be dealt with under the contract.

Procedure aims and objectives

The aim of the procedure is to describe the process for the investigation, management and support of primary care performers and contactors whose performance gives cause for concern.

The procedure adheres to national guidance and regulations.

Definitions of underperformance

The procedure has been produced to support area teams to take appropriate and proportionate action in the area of performance concerns. Underperformance can be defined as a failure to meet accepted standards of professional practice as determined by the professional regulators (fitness to practice), reference Annex 5. The procedure also guides areas teams in managing performance concerns where there is a failure to meet acceptable standards of practice expected by the NHS CB (fitness for purpose). Underperformance can fall into one or more of the following categories:

  • Personal conduct, performance or behaviour due to factors other than those associated with exercising of clinical skills
  • Professional conduct, performance or behaviour arising from the exercise of clinical skills
  • Professional competence, adequacy of performance related to the exercise of clinical competence
  • Health issues - concerns relating to the health of a performer or contractor may be a significant contributory factor in underperformance
  • Organisational or systems failure - for example:
  • Inadequate administrative or professional support
  • Failure to apply policies and procedures
  • Failure to check on the qualifications and competence of locum or recruited staff

As many performance problems relate to the interaction between the performer/contractor and the health care system in which they work, broader contributory factors need to be taken into account.

This could mean that recommendations for dealing with concerns extend beyond the individual, to arrangements within the practice, or, indeed, to the wider system of primary care. Elements of underperformance may need to be dealt with through the contractual route. Elements of underperformance may also need to be considered in instances where the performer is also a signatory to the contract.

The National Health Service (Performers List) Regulations 2013, define three areas of performance concerns:

  • Efficiency – eg seriously compromising/disrupting the efficient delivery of health care. This area would mainly cover competence and quality of performance.
  • Fraud – eg obtaining or attempting to obtain resources to which the primary care practitioner is not entitled.
  • Suitability – eg evidence of unsuitable or dangerous clinical practice or inappropriate personal behaviour both within and out with the work context. This may include (but is not limited to) criminal offences, for example those of a sexual or violent nature. It also includes satisfactory qualifications and registration.

Further information about these areas is contained in Annex 2.

Procedure

Identification of performance that gives cause for concern

All concerns about the performance of a performer or contractor must be reported to the senior manager with responsibility for quality and performance, preferably in writing and for doctors these concerns will also be discussed with the responsible officer.

Information about potential poor performance may be received by the NHS CB from a wide variety of sources, which include:

  • Health care employee from within and outside of the NHS CB
  • Member of staff from within general practice, dental practice, optometric practice, pharmacies or dispensing appliance contractors
  • Information from patients through the complaints procedure, patient advice and liaison service (PALS) enquiries, patient safety incidents, and patient, public and carer engagement groups
  • Local professional networks (LPNs)
  • Care Quality Commission (CQC)
  • National professional regulatory or representative bodies
  • Local representative committees
  • Self-identification
  • Monitoring of services provided by out of hours, review of complaint, incidents and clinical review meetings
  • The systematic review of incidents, serious incidents, complaints and clinical negligence claims
  • The GP appraisal process
  • Through the GP revalidation process
  • Routine monitoring and inspection to ensure the safe management and use of controlled drugs
  • Visits to practices and pharmacies e.g. Quality & Outcomes Framework (QOF) assessments, contract reviews, clinical governance visits, Local Healthwatch organisations visits
  • People and organisations outside of the NHS, e.g. police, coroner, social services, courts, and the Health and Safety Executive (HSE).

Recording concerns

Each concern that is reported to the senior manager with responsibility for quality and performancewill be recorded using a unique identifier. All correspondence, file notes, reports, action plans and other documentation relating to each case will be maintained in chronological order under that identifier, in files marked confidential, and stored in a locked cabinet. All electronic files will be password protected, and a limited number of named personnel only will have access to both written and electronic files.

On receipt of a letter, email or telephone call raising a concern about a performer or contractor the senior manager with responsibility for quality and performancewill acknowledge receipt, in writing.

Assessment of the reported concern

The NHS CB is committed to valuing diversity and promoting equality throughout the organisation, ensuring that our processes and procedures are fair, objective, transparent and free from unlawful discrimination. Promoting equality is also a requirement under current equality legislation. Everyone who is acting for the NHSCB is expected to adhere to the spirit and the letter of this legislation.

All panel members will have up to date training on equality and diversity.

  • Equality - treat everybody equally and fairly in a non discriminatory manner
  • Diversity - recognising variety of cultural and different backgrounds
  • Fairness - the consistent application of the standard.

The NHS CB should be aware that there may be cultural differences in the way that insight is expressed, for example, whether or how an apology or expression of regret is framed and delivered and the process of communication, and that this may be affected by the practitioners circumstances, for example their ill health.

Cross -cultural communication studies show that there are great variations in the way individuals from different cultures and language groups use language to code and de-code message. This is particularly the case when using a second language, where speakers may use the conventions of their first language to frame and structure sentences, often translating as they speak and may also be reflected in the intonation adopted. In addition, there may be differences in the way that individuals use of non-verbal cues to convey a message, including eye contact, gestures, facial expressions and touch.

Awareness of and sensitivity to these issues are important in determining the following:

  • How a practitioner frames his / her 'insight'
  • Whether or how a practitioner offers an apology
  • The practitioner's demeanour and attitude during the hearing.

A preliminary investigation is undertaken to establish the facts. NCAS advice may be sought at this stage. NCAS has produced a good practice guide entitled How to conduct a local performance investigation - investigations/ #34 Support-the-practitioner, which sets out the principles to be considered when investigating cases about professional performance. The guide contains report templates, check lists and stock letters which area teams may find useful.

Before deciding if there is a case to answer and deciding if a formal investigation is required. This will include:

  • A review of any relevant clinical or administrative records, the extent of any review of clinical records will be determined by the preliminary discussions and advice from NCAS.
  • Review of any report or documentation relating to the issues in question (e.g. serious untoward incident report, any letters relating to the issues or notes/statements made by individuals with knowledge of the issues). Formal witness statements may not have been drafted at this stage, but the individuals concerned should always make a written record as soon as they can while matters are still fresh in their minds
  • Where there has been a patient safety incident, Root Cause Analysis (RCA) toolkit ( will be used to support the performance screening group (PSG) decision making process by identifying whether the incident was a system failure or relates to an action by an individual
  • Interviewing of individuals may be appropriate as part of the preliminary investigation where clarification of the substance of the individuals’ comments or the extent of his/her involvement is necessary
  • The preliminary investigation should be completed as quickly as possible, normally within, at most, 10 working days of issues being raised. At this initial stage of investigation it is important that all matters are dealt with sensitively and in confidence.Generally performers or contractors will be made aware of the complaints made against them at the outset and have the opportunity to feed into the preliminary investigation and provide information to the AT about the context of the complaint or concern.
  • The AT will use discretion and judgment in notifying the performer or contractor where there is a vexatious complaint. The performer or contractor will not be made aware of the complaint or investigation at the initial stages in cases of fraud.
  • The preliminary investigation is undertaken by the senior manager with responsibility for quality and performance, with advice and guidance of the NHS CB professional advisors and the relevant local representative committee (LRC), appropriately and when required.
  • The senior manager with responsibility for quality and performance will present all the information gathered during the preliminary investigation to the PSG.

Performance screening group

Stage 1

The PSG will review all new cases of concern presented by the senior manager with responsibility for quality and performance, and is responsible for monitoring all on-going cases until they have been formally closed. This will include keeping written minutes of meetings setting out the reasons for decisions and actions taken.

It is the responsibility of the PSG to review each case on an individual basis as each case is different and needs to be dealt with according to the case circumstances.

It is the responsibility of the PSG to consider verifiable information and evidence.

Where a case relates to a member of the PSG or close colleague (e.g. partner), a conflict of interest arises. This should be declared by the PSG member who should not then take part in any discussions relating to the case in question. The appearance of potential conflicts of interest should also be considered.

The PSG will consider if all immediate necessary steps have been taken to protect patients and the wider public by responding promptly and effectively to the concerns that have been raised.

The PSG will ensure that all immediate necessary steps have been taken to protect staff, including whistle-blowers, to support the subject of the proposed investigation and protect any sources of evidence.

The PSG will also consider if immediate necessary steps have been taken to protect the performer or contractor, for example recommending a referral to occupational health services.

The PSG will consider and agree if simple measures applied locally are appropriate, and if they will be an effective method of resolving concerns. Local resolution and a supportive approach to resolving concerns to the benefit of performers or contractors and patients alike should be a first consideration.

Based upon the information from the preliminary investigation, the PSG will decide whether there is a case to answer. If on preliminary investigation it is agreed that the process has gathered as much information as possible, and from that information there are no grounds to substantiate the reported concerns the case will be closed. Reasons for the findings of the decision will be given to the performer or contractor.

Stage 2

If the PSG agrees that there may be substance in the allegations it will then decide upon the following:

  • Who should meet with the performer or contractor and inform them of the concern raised, explain the process being followed and give them the opportunity to respond to the allegation.
  • Who should support the performer or contractor
  • How the actions are going to be monitored

The senior manager with responsibility for quality and performance will formally write to the performer or contractor to advise them of the concern raised and confirm that a meeting will be arranged

Action might include the following:

  • Developing a formal local action plan agreed with the performer or contractor with clear outcomes, timescales, progress measures and review procedure
  • Education or update training
  • Referral for an occupational health assessment
  • Request for a formal investigation
  • Support with specific issues from appropriate members of the AT
  • Referral to the performers lists decision panel (PLDP) if it is considered that local resolution is inappropriate due to the serious nature of the concerns raised, or the performer or contractor is failing to improve, or the performer or contractor is non-compliant with advice from the National Clinical Assessment Service (NCAS) or non-compliant with local resolution.

Stage 3