Handling performance concerns in primary care

Model policy and procedures

(Including guidance notes)

CONTENTS
Context to the development of the Model Policy and Procedures
Section One: Introduction
Section Two: Governing Principles
Working with performance problems
2.1.Meeting statutory responsibilities and complying with legal requirements
2.2.Maintaining patient safety and protecting the public
2.3.Understanding performance problems
Ensuring fairness and equity
2.4.Support for those involved
Maintaining confidentiality and safeguarding information
Section Three: Decision Making and Support Structure
Decision making group
Performance advisory group
Responsible board member/GP performance lead
Professional clinical advice
Professional list panel
Investigating officer
Management support
Section Four: Local Performance Scheme
Responding to concerns
Formal investigation process
Immediate action due to patient risk
Remedial action through PAG
Section Five: Managing Performers Lists

Inclusion on the performers list

Suspension from a performers list
Removal or contingent removal from a performers list
Section Six: Managing Contracts and Agreements
Issuing contracts and agreements
Issuing breach and remedial notices
Termination of contracts or agreements
Application of sanctions
Schedules:
  1. Current legislation governing the management of medical, dental and ophthalmic performers lists and contracts
  2. Procedures for Oral Hearings
  3. Procedure for Suspension from a Performers List
  4. Procedure for Removal or Contingent Removal from a Performers List
  5. Procedure for Issuing Breach or Remedial Notices Relating to Contracts and Agreements
  6. Procedure for considering the termination of contracts and agreements or the application of sanctions
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Handling performance concerns in primary care

Background

Performers lists management arrangements and implications for patient safety have been a key focus of attention since the publication of the Care Quality Commission’s interim report into the provision of out of hours services by Take Care Now (published October 2009).

There has been further scrutiny applied in a number of other publications, including David Nicholson’s letter to PCT Chief Executives on 4 February 2010 (Gateway 13512), a Department of Health report (by David Colin Thomé and Steve Field) published in February 2010 regarding out of hours services, and more recently, the publication of the Care Quality Commission’s final report on out of hours services (15 July 2010).

From 1 April 2010, PCTs were required review their performers list management arrangements, in line with the National Health Services (Performers Lists) Directions 2010

Safeguarding patient safety and assuring the quality of primary care services is of paramount importance and the robust management of performers lists by PCTs (including where delegated to shared services agencies) contributes significantly to this agenda.

Context

The West Midlands Primary Care Commissioning (PCC) Steering Group identified monitoring and improving the quality of health care provided by and on behalf of PCTs as a support and development priority for the West Midlands PCC regional work programme for 2010/11.

The focus on the management of performers lists and primary care contracts to support PCTs discharge their statutory responsibility of quality allows PCTs to manage the quality of care provided by the full range of primary medical, dental and ophthalmic professionals.

PCC organised two workshops during May and June 2010 as part of the West Midlands regional work programme. The first was aimed at operational staff within primary care teams to develop a greater understanding within PCTs in relation to the management of performers and contractors lists, and the second was aimed at PCT staff and non-executive directors with responsibility for managing poor performance amongst primary care practitioners

Following the first workshop PCC worked with West Midlands PCTs and NHS West Midlands to co-produce a framework for the review of performers lists – as required by the Directions. Further details can be found at:

The performers lists review also recommended the development of a model policy and procedures document for handling performance concerns in primary care when they occur and this was iterated at the second workshop on 2 June 2010 following on from managing performers lists inclusions.

The model policy, handling performance concerns in primary care was then developed specifically for the West Midlands but it has national relevance and application.

The model policy and procedures

Handling performance concerns in primary care

The model policy and procedures, handling performance concerns in primary care has been developed to increase knowledge and understanding of the primary care legislation governing the management of primary care performers and contractors lists.

The attached document and any information or examples contained within it are issued for guidance only and are not intended as a substitute for the provisions of any regulations governing the management of performers lists or primary care contracts, nor should they be seen as such.It is intended that the document be used in conjunction with legislation and guidance from professional bodies and educational establishments which are part of a wider stakeholder group involved in the identification and management of poor performance.

The model policy addresses the technical aspects of handling performance concerns when they have arisen and has been developed to support PCTs, performers and contractors and to helpensure the adoption of a consistent, transparent and robust approach to managing professional performance.

The development and implementation of standard policy, process and procedures is also applicable for, and facilitates, the development of cluster working and peer review. It will support the emerging GP consortia and the National Commissioning Board in the transition and in future as they take on their roles and responsibilities for ensuring patient safety and professional performance.

The policy sets out a formative balanced approach. It encourages balance between taking a supportive and developmental approach to understand the underlying reasons for performance problems and the need to take action to comply with statutory responsibilities and compliance with legal requirements.

The modelpolicy provides a suggested governance structure for managing poor performance and identifies the interface between organisational roles and responsibilities. It also provides information about what might be included in a local policy, including a suggested process and sets out example operational procedures for each step of the process. The models and examples we suggest have been informed by recent discussions with a variety of PCTs and their experiences of what works well for them, the requirements of statutory regulations, national guidance and latest advice from NCAS.

The guidance notes throughout the document are included to highlight essential elements which should be considered, examples of implementation approaches and support for individual roles and responsibilities.

Additionally there are references to local arrangements which are specific to individual PCTs and individual circumstances.

The policy focuses on addressing concerns about clinical behaviour and the opportunities to address such concerns using the performers lists regulations.

The model policy and procedures are provided as both pdf and word documents and are designed to enable PCTs to adapt and/or adopt elements of them as they see fit for use locally. The guidance notes and references to local circumstances can be deleted from the word document and additional information included about local circumstances so that the document can be tailor made to suit local or cluster arrangements.

Any PCT incorporating elements of the models and examples into local policies and procedures are advised to take legal advice as appropriate to ensure that their final documents comply fully with statutory regulatory requirements.

PCTs, performers and contractors should be aware that concerns may also arise about contract compliance and/or about potentially fraudulent practice and the most appropriate approach and mechanism should be used. Concerns may not be mutually exclusive and action may need to be taken using performers lists regulations, contract regulations and guidance from counter fraud and security services to ensure patient and public safety and safeguarding public money.

SECTION ONE: INTRODUCTION

It is the duty of the PCT as an NHS body to putin place and maintain arrangements for the purpose of monitoring and improving the quality of healthcare provided by and on behalf of itself and the effective commissioning of primary care is central to improving quality. As a World Class Commissioner the PCT has a responsibility for being explicit about:

The standards of care that are expected to be met;

When and how performance is to be reviewed;

What will happen if performance is below standard;

The support that is available; and

The action that will be taken when performance fails to improve.

This statutory responsibility of quality is able to be managed through a number of mechanisms, including the management of the performers lists and primary care contracts. These allow the PCT to manage the quality of care provided by the full range of primary medical, dental and ophthalmic professionals, including principal GPs and GDPs, optometrists, OMPs, salaried practitioners, locums, registrars and dentists.

This document sets out a clear escalation process for when a failure in meeting required standards occurs and provides information on the local policies and procedures utilised by the PCT in relation to the handling of concerns about the performance of primary care medical, dental and ophthalmic practitioners and the overall management of their contracts.

Any advice or information given within this document should not be seen as a substitute for the provisions of the Regulations governing list or contract management. Any decisions taken by the PCT must comply at all times with the provisions within the Regulations and those responsible for making decisions should refer to the Regulations when appropriate.

In developing these policies the PCT has been mindful of the appropriate guidance issued by the Department of Health regarding the management of performers lists and contracts.

SECTION TWO: GOVERNING PRINCIPLES

Guidance Note:

Key principles underpinning performance policy and procedures

The management of performance concerns can be complex and any actions the PCT takes may have a significant impact upon the livelihoods of the individuals involved and consequently may be strongly contested. It is therefore important, if actions and decisions are not to be challenged, that all local performance procedures and mechanisms have regard to some key issues and principles, including:

Maintaining patient safety and protecting the public;

Meeting statutory responsibilities and complying with legal requirements;

Understanding performance problems;

Ensuring fairness and equity within all processes;

Providing support for all those involved; and

Maintaining confidentiality and safeguarding information.

It is important that all parties have confidence in the way in which a PCT handles performance concerns and consequently recognition of these issues and a commitment to the key principles should be clearly set out in the local policy document. This commitment should then be reflected in the associated processes and procedures.

The statements contained in the model policy provide examples of what might be included in a local document. In addition to these examples, your PCT may have specific principles which apply to all of its policies and if so these should be included here.

2.1.Working with performance problems

All those within the PCT who are involved with the handling of concerns about performance in primary care will seek to ensure that their working arrangements and procedures comply with certain key principles. All procedures have therefore been designed with the aim of:

Protecting patients and the public, and enhancing their confidence in the NHS;

Identifying the possible causes of underperformance;

Ensuring that action is based on reliable evidence;

Being clearly defined and open to scrutiny;

Ensuring equality and fairness of treatment and avoiding discrimination;

Safeguarding information; and

Being supportive of all those involved.

The PCT is aware that lasting damage can be caused to the reputation and future career of a practitioner or contractor by unfounded and malicious allegations. Any and all allegations, including those made by patients or relatives of patients, or concerns expressed by colleagues, will therefore, be investigated fully to properly establish the facts.

Cases handled under these arrangements could range from practitioners or contractors needing temporary support whilst they resolve a short-term problem to more complex issues involving quite clear clinical, professional, management or organisational underperformance. It is important that all parties have confidence in the process and accordingly the PCT will seek to raise awareness and understanding amongst practitioners and others about how they operate. Local policies and procedures will therefore be published and made available to all appropriate health professionals in the area.

2.2.Meeting statutory responsibilities and complying with legal requirements

The PCT has a statutory responsibility to provide or secure, through contractual arrangements, all primary medical, dental and ophthalmic services it considers necessary to meet the reasonable requirements of its population. Any contracts or agreements entered into by the PCT under these arrangements must at all times comply with the appropriate legislative frameworks.

The 1977 NHS Act and the NHS (Performers Lists) Regulations give the PCT powers, which allow it to regulate the performance of primary care services in its area. Formally, this means that the PCT has the power to prevent a general medical practitioner (GP), a general dental practitioner (GDP), optometrist or ophthalmic medical practitioner (OMP) from performing services, or to place restrictions (conditions) on a doctor, dentist or optician with which he is obliged to comply.

Since a GP, GDP, optometrist or OMP must be on a performers list to perform services for patients, the PCT is able to regulate them by:

Deferring a decision about an application;

Refusing to admit a practitioner to its list;

Placing a practitioner on its list subject to conditions;

Removing a practitioner’s name from its list;

Contingently removing a practitioner’s name from its list; or

Suspending a practitioner’s name from its list

Equally, the introduction of local contracting arrangements for primary medical, dental and ophthalmic services has given the PCT further powers to manage performance concerns in these areas. All primary medical, dental and ophthalmic contractors are required to comply with the terms of their contract or agreement with the PCT. Failure to do so can lead to the PCT exercising its right to take action under the contract or agreement, which could include:

The application of sanctions;

Varying the contract (if agreed by both parties);

Issuing a breach notice;

Issuing a remedial notice; or

Terminating the contract or agreement

Details of all current regulations governing the management of performers lists and contracts for primary medical, dental and ophthalmic services are shown at Schedule 1.

2.3.Maintaining patient safety and protecting the public

Whenever concerns are raised about the performance of a practitioner there is always the potential for the matter to have an impact upon patient safety or for it to impinge upon the wider public interest. In all cases where a concern is raised the PCT will therefore evaluate the particular circumstances and associated risks to determine whether any immediate action is required in order to protect patients.

The duty to protect patients is of paramount importance to the PCT and the priority in the local performance procedures will be to assure and maintain patient safety and public protection.

2.4.Understanding performance problems

When performance issues arise they may relate solely to an individual practitioner who is performing services under an NHS contract or agreement or in certain circumstances may relate to the contractor who is the person [or persons] who is the holder of the contract or agreement. It is therefore important to identify who is involved as this will to some degree dictate the course of action that needs to be taken.

Whilst most health care professionals practice to a very high standard, some individuals may occasionally work in ways that pose a serious risk to patient safety. In many instances this can be unintentional and the clinician’s performance may be affected by a combination of personal and situational factors, such as illness or professional isolation. The PCT will therefore always seek to take the most appropriate action in order to protect patient safety and to help the practitioner or contractor involved.

It is acknowledged that concern about a practitioner’s or contractor’s conduct or performance may come to light in a number of ways and in implementing the policies and procedures outlined in this document the PCT will use a variety of sources of information.

The PCT may become concerned about a practitioner’s or contractor’s performance either proactively, through information it routinely collects, or reactively, through information received from a third party (e.g. concerns raised by colleagues or patient complaints).

Equally, concerns about a practitioner or contractor may relate to any one of a number of areas, including:

Poor clinical performance;

Ill-treating patients;

Unacceptable behaviour such as harassing or unlawfully discriminating against staff or patients;

Breaching sexual or other boundaries with patients or staff;

Poor teamwork that compromises patient care;

Personal health problems leading to poor practice;

Not complying with professional codes of conduct;

Poor management or administration that compromises patient care; or

Suspected fraud or criminal offence.

This list is not exhaustive and there may be other areas of concern that the PCT will need to consider.

2.5.Ensuring fairness and equity

Guidance Note: