What does it mean to be excluded
Being excluded from work is a temporary
measure put in place while employers decide how to resolve a
If you are excluded from work, it can be
distressing. It’s essential to seek advice the moment you are or
think you are likely to be excluded or restricted from
Find out about the medico-legal and personal
conduct representation available from the NHS, professional bodies
and medical defence organisations.
The process for excluding a doctor from
NHS trust officers and the trust
board have overall responsibility for ensuring the process is
quick and fair, kept under review and that the total exclusion
period is not prolonged.
- The chief executive ensures the exclusion
process is managed fairly.
- The medical director or a senior manager is
usually the case manager .
- The investigating officer/case
investigator gives factual information to the case manager to
weigh up the need for exclusion and provides progress reports to
the chief executive and the trust board.
Although it is uncommon, you could be
dismissed as a result of exclusion if the allegation is found to be
Immediate time-limited exclusions might be
- Serious allegations have been made.
- Relationships between a colleague and the
rest of the team have broken down.
- The doctor’s presence is likely to hinder the
The manager making the exclusion must:
- Explain why the exclusion is
happening (there may be no formal allegation at this stage).
- Agree a date, up to 2 weeks’
maximum, when the doctor should return to work for a further
- Advise the doctor of their
rights, including representation.
Formal exclusion will only be used where:
- There is a need to
protect patients or staff awaiting the outcome of a full
investigation into allegations of misconduct.
- Concerns about serious
dysfunctions in the operation of a clinical service or the
practitioner’s capability are serious enough to warrant protecting
- The presence of the
practitioner in the workplace is likely to hinder the
Formal exclusion can only happen if the case
manager and a case conference decide there is a proper cause to
If a case investigator is appointed, a
preliminary report is prepared for a case conference. This report
gives the case manager enough information to decide whether:
- The allegation appears unfounded.
- There is a misconduct issue.
- There is concern about the practitioner’s
- The case warrants further detailed
investigation before advice can be given on the way forward
Review Procedures for Exclusion
Before the end of each
4-week period, the case manager reviews the exclusion and gives an
advisory report to the chief executive and the trust board. The
case manager decides on next steps. The NHS body must also act
before the end of each 4-week period. After three periods of
exclusion, the National Clinical Assessment Service (NCAS) must be
The role of the Strategic Health Authority
The SHA notifies NCAS
about the exclusion. If an exclusion period is extended twice, the
chief executive of the employing organisation must let the SHA know
any suggested actions to resolve the situation. Where re-training
or other rehabilitation action is proposed, the continued exclusion
must be explained.
The role of the Trust board and designated
The trust board makes
sure procedures are established and followed. Board members might
sit as members of a disciplinary or appeal panel. Information given
to the board must show correct procedures are being followed.
The board designates one
of its non-executive members to oversee the case manager and
investigating manager during the investigation process and ensures
the momentum of the case is maintained.
Return to work
If it’s decided that the
exclusion should end, formal arrangements will be made for doctor
to return to work. It has to be clear whether clinical and other
responsibilities will remain unchanged, what restrictions might be
imposed or if any monitoring arrangements are needed.
Your rights during the exclusion process
- You can be represented by colleagues and/or
union officials and you may call witnesses.
- A solicitor can accompany you but they should
not act in a legal capacity.
- You should be informed of your right to
- If you’re dismissed or have exhausted local
procedures, you have the right to take your case to an employment
The rights of your employer during the exclusion
Your employer has a right to expect:
- you to comply with your contract.
- basic standards of performance.
- for you to cooperate with the process.
- information to be shared with other
organisations if there are concerns about patient/staff
Checklist for Psychiatrists Excluded
- Have you read a copy of Maintaining High
Professional Standards in the Modern NHS (MHPS) and determined how
it applies to you?
- Is your treatment consistent
- Is there a policy in your organisation
explaining how doctors undergoing investigations will be
- Have the issues you’re being excluded
for been raised with you previously?
- Have you been offered a reasonable
opportunity for remediation?
- Has the trust sent you a copy of their
disciplinary rules and other procedures?
About your case
- Have you been informed in writing about the
complaint or allegation?
- Have you been given the opportunity to state
your case and propose alternatives to exclusion?
- Have you received copies of all relevant
documentation about the case?
- Does the letter confirming your exclusion
- date and time of exclusion?
- duration of exclusion (up to 4 weeks)?
- the allegations?
- terms of the exclusion, such as not returning to the premises,
avoiding contact with colleagues and the need to remain available
- information about what will follow e.g. an investigation?
Management and investigation of the case
- Who is managing the case?
- Who is leading the investigation?
- Who will be called as witnesses?
- Are any of the parties involved in the
investigation/disciplinary process part of the
complaint/allegation? Could this affect their ability to deal with
Other Information and Rights
- Your case should be reviewed every 4
- You have the right to receive pay throughout
the exclusion period
- You must be available for meetings during
your normal contracted hours within 24 hours of being asked to
- You cannot be put ‘on trial’ for the same
issue twice, but previous concerns about conduct or
performance will be considered if you’re already receiving support
or monitoring on these issues
- You should still have access to occupational
- The Trust should outline arrangements for
your continuing professional development, if it is expected that
your exclusion will last for some time
I am on an ‘old’ employment contract,
does this procedure apply to me?
High Professional Standards in the Modern NHS (MHPS) applies
to everyone in England. At the time of printing, Northern Ireland
have agreed a similar version but with some crucial differences.
Scotland is using its own version of Health Circular HC(90)9,
as is Wales which is also in the process of agreeing something
close to Maintaining High Professional Standards in the Modern
Do I still have
the right to appeal to the Secretary of State?
No - MHPS replaces this
right of appeal. There may be some exceptional circumstances which
can only be assessed by your legal advisers.
What do I do if I
have been excluded from work as a result of malicious or vexatious
Speak to your
organisation’s professional advisers following the
disciplinary/grievance procedures to seek redress.
Is it lawful to
be excluded without a face-to-face meeting?
There should be a meeting
to discuss the situation before a decision is made about exclusion,
but it’s not unlawful to exclude without a face-to-face
What happens if
my employer fails to follow the MHPS procedure?
You and your professional
representative can make a formal appeal to the non-executive
director of the board who ensures proper procedures are being
What happens if I
don’t follow the procedure as specified in MPHS?
If you don’t comply with
MPHS, you could face further disciplinary action.
Is there a
distinction between professional conduct and personal
No – the principles
of MHPS apply to both.
What sources are
available for further help and support?
HR should be involved in
the exclusion process to ensure fairness. They can inform you about
available occupational health and counselling services.
Should I seek
support from others?
Someone who isn’t
involved in the investigation, like a mentor, can listen to your
concerns, provide advice and support you difficulties. Eat well and
exercise to help your own physical and mental well-being.
Department of Health (2005), Maintaining High Professional
Standards in the Modern NHS. Department of Health
Produced by the Psychiatrists’ Support Service
in partnership with Stephen Campion, Chief Executive of the
Hospital Consultants and Specialists Association, and Karen Wadman,
Senior Human Resources Adviser at the National Clinical Assessment
This leaflet provides guidance and information
on best practice as defined in Maintaining
High Professional Standards in the Modern NHS (Department
of Health, 2005). It will act as guidance on what to expect from
your employer throughout the process. However, it is not a
substitute for obtaining professional and legal advice.
The information should be used as a guide
only and is not a substitute for professional advice. If you need
further advice and support, please contact the Psychiatrists’
© Royal College of Psychiatrists 2016
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