Inequalities in Nursing

This assignment will critique the phenomenon of suspension within the NHS and explore the inequalities in how the Department of Health (DOH) manage this process. This will focus upon the differences between how medics (doctors and dentists) and nurses are managed within the NHS. The number of those affected by the process of suspension will be highlighted and there will be a discussion of the policies and procedures available to these professionals working within the NHS.

A brief description of why suspension occurs will be offered and the experience of those affected by the process of suspension will be examined which will look at stress; in particular within nursing, bullying and harassment and look at how whistleblowers are treated. Much of the literature relating to suspension and discipline within nursing is found in the USA where suspension is a form of discipline that occurs after an investigation and hearing has concluded. This is of limited relevance as in the UK a nurse is suspended before the hearing and whilst the allegations are being investigated.

Therefore, the literature had to be carefully reviewed in the light of differences in the meaning of suspension between the UK and USA. Every year, unknown but considerable numbers of NHS staff (other than doctors and dentists in England) are unjustly/unnecessarily suspended/excluded from work. This was established by the National Audit Office Report (NAO 2003 p. 11) into suspensions and there appeared to be no improvement found somewhat three years later when a journalist using the Freedom of Information Act, discovered that the numbers of excluded staff still ran into hundreds at least (Roper 2006).

The Department of Health may not be aware of the scale of the problem as it does not gather data on clinical staff other than doctors and dentists (NAO 2003 p. 11). The Daily Mirror reported the cost of these suspensions to be up to £100 million (Roper 2006). This figure could be much higher due to gross underreporting (NAO 2003 p. 20) and the estimated costs not taking into account the hidden costs such as, legal costs, sick pay, health care costs for those made ill, financial debt, relationship breakdowns and wider social detriment.

Doctors and dentists in England are the only NHS staff groups to have had statutory Directions since 2005, managed by the National Clinical Assessment Service (NCAS). From analysing 1700 cases the Department of Health is rightly proud with finding alternatives to suspension in 85% of possible cases (DOH 2007). In handling suspensions at present there is a two tier service for employees of the NHS. The doctors and dentists are the top tier and other professionals including nurses are at the bottom.

Within the NHS there are two documents for doctors and dentists which safeguard this professional group and staff must not be suspended unless they meet certain criteria. The first document is the work of the National Patient Safety Agency (NPSA) which has produced the incident decision tree (NPSA 2007). This is a flowchart to help managers decide what action to take if a patient safety incident has occurred or has been alleged. Its purpose is to help promote an open and fair culture in the NHS and to help managers determine a fair and consistent course of action to take with staff following a patient safety incident.

The NPSA website has a learning tool for conducting root cause analysis, which is a way of looking at critical incidents and near misses to look for system failures and learn from them to prevent re-occurrences. This is a very positive tool which does not purely look at who is to blame and its main purpose is to learn lessons from the process of suspension. The second document is the Directions (DOH 2005), these are based on ACAS best practice and lay down clear timescales and processes.

For example, there is a two week time period allotted for the initial investigation, carried out to establish the facts in an unbiased manner and also there is to be openness, good communication and innocence presumed unless evidence shows otherwise. For nurses and other non doctors and dentists there are voluntary guidelines in place to manage suspensions with no timescales and the emphasis is focused upon good practice and the guidelines state that tools such as, root cause analysis and the incident decision tree may be used (DOH 2006 p. 5). The only major work regarding suspensions in the UK was published by the NAO (2003). The study of clinical staff in the UK, which includes nurses, used a data collection survey of NHS Hospital and Ambulance Trusts in England. An expert panel reviewed methodology and emergent key findings which in terms of nurse suspensions revealed that between April 2001-July 2002, 567 nurses and midwives were suspended for at least one month (p. 15). This amounted to 53% of total NHS staff suspension.

Nurses were more likely to be formally suspended than doctors and the average length of suspension was 19 weeks (p. 11). At the end of the suspension 44% returned to work and fewer than 20% were suspended for reasons of professional competency (p. 16). The survey also looked at Trusts’ adherence to best practice, which it was concluded that in many cases it was not followed, particularly in regard to; consultation of alternative options to suspension, regular progress reviews and reporting to the Trust Board (p. 25).

The report stated that two thirds of local Trust’s use DOH guidance as a basis for their local procedures but that a quarter of Trust’s felt that the DOH guidance was of little use. Common criticisms were that the guidance was lengthy, complex, legalistic and difficult to follow (p. 24). The ACAS (1997) guidance was also used by Trust’s to develop local policy for managing suspensions. The lack of guidance or confusion at local level for nurse suspension has led to procedures that are open to an individual manager’s interpretation and abuse. This does not bode well for the management of nurse suspension.

Other alarming findings include that those suspended felt that the investigations were flawed, replies were ignored, they were not listened to, allegations were malicious and the time things took were lengthy and destructive (NAO 2003 p. 28). Also it could be argued that the outcomes have to justify the draconian action taken so that there is no justice in the end. People may be made to return to some re-training programme that is almost as stressful as the investigation and disciplinary hearing, or they have to take early retirement due to ill health.

Another possible outcome is that they go to an employment tribunal or sue their former employers. That is not an easy option to take, causing continued untold stress and yet takes more money away from the NHS. Some Trust’s recognised the stress of suspension and produced procedures acknowledging such, for example ensuring a union representative was at the suspension meeting, having a named link person for ongoing contact and ensuring counselling was available. Employers can be held legally responsible for the health and safety of work-related stress according to Bristow (2001 p. 2). Therefore, it may be argued that if employers can reasonably foresee the psychological impact of suspending a nurse and did not take this into account in their management of suspension; it could then be possible for the employer to breach their duty of care under the Health and Safety at Work Act (1974).

In parliament the Public Accounts Committee (PAC) members requested the NAO report into the management of suspensions and questioned numerous DOH bigwigs (PAC 2004). The members asked why the Directions do not apply to all NHS staff and the eply was that the Chief Nurse’s Office was looking into this in conjunction with the National Clinical Assessment Authority (now the National Clinical Assessment Service, part of the NPSA). The PAC members asked for further information which subsequently took the Department of Health some time to provide. When the PAC (2004) published its response to the Government it made the point that under the Employment Act 2002, disciplinary action has to be consistent across any employing organisation, therefore, the Directions should apply to all staff.

Also this issue was broached on the frequently asked questions section on implementing the Directions (DOH 2007b) when asked why doesn’t the framework apply to other groups. The answer given was that many of the principles can be applied to other groups and reiterated the point about the Employment Act 2002. This is a clear contradiction and medical staff have exactly the same employment law at their disposal, and are NHS employees like other professionals, so the question needs to be asked why medical staff are being given extra statutory provision and thus preferential treatment?

The National Audit Office and the Public Accounts Committee of MPs have both recommended that all staff should be covered by the mandatory Directions regarding exclusion (suspension) of staff from work (NAO 2003 p. 8. , PAC 2004). However, the Department of Health is clearly ignoring the published comments and agreements to the PAC and NAO and refuses to provide this service for all staff and the NHS will continue to exclude people from work inappropriately as it has already highlighted that there are some organisations which work by guidelines; many do not (NAO 1993, p. 5). The statutory Directions should be extended to nurses and to all staff to ensure there is an independent and knowledgeable case manager such as NCAS. There could be a huge reduction in the number of suspensions/exclusions of all staff. All proposed cases of suspension/exclusion to be assessed using the Incident Decision Tree and root cause analysis of the NPSA. All employers to be statutorily required to collect and publish suspension/exclusion data and to be prevented from using ambiguous or misleading terms such as garden leave and authorised absence etc.

The cost of the NCAS service could be met by the savings generated as poorly conducted investigations and disciplinary hearings cease. It will stop the loss of staff no longer able to work in the NHS due to breakdown of trust in managers, or who become too ill to work and have to retire on grounds of ill health. It will also minimise the wider unreported social costs. Most importantly, by extending the Directions, the UK Departments of Health will be fulfilling their duties of care to all NHS employees and protecting them from the devastating effects of unjust/unnecessary exclusion from work.

Suspension within the NHS is currently portrayed as a neutral act to protect the interest of all concerned (NAO 1993 p. 11), not punishment and the term used is that suspension doesn’t infer guilt. This is, however, contradictory to dictionary definitions of suspension which states “temporary removal from a job or position, usually as a punishment” (Collins 2005 p. 837) and is not the real experiences of those suspended, which are more akin to dictionary definitions (NAO 1993 p. 30).

This issue has had very recent criticism; a precedent was set in the High Court in April 2007 during the case of Mezey v South West London and St George’s Mental Health NHS Trust (WMLGA 2007) where it granted an injunction restraining the Trust from suspending one of its consultants and the Trust was refused leave to appeal against this decision. The judge stated suspension is not a neutral act as it “changes the status quo from work to no work and it inevitably casts a shadow over the employee’s competence” (WMLGA 2007).

This case has implications for practice as this alerts employers to the prospect of an employee seeking an injunction to actually lift a suspension, which if successful could be disruptive and damaging to both parties. Also being suspended may impact upon one’s continuing professional development, an increasingly important component of continued professional registration and revalidation. According to Millard (1986 p. 11) suspension should be used as a holding operation in special circumstances and is not disciplinary action in itself. It was deemed to be action taken without prejudice not involving any loss of pay or rights.

However, it can be argued that the act of suspension which involves being asked to leave the workplace and to have no further contact with colleagues whilst the investigation proceeds is akin to punishment. Unsympathetic and unconstructive use of suspension by possibly inept managers could damage working relationships and moral beyond repair. Suspension as an act occurs in the context of alleged gross misconduct and is often perceived and experienced as punitive and blaming, hence the importance of exploring the historical and current viewpoints regarding punishment and blame.

Tracing nursing back to the days of Florence Nightingale, stringent standards of behaviour expected by nurses were enforced by punitive means. Nurses trained in this tradition may have taken on the punitive mantle and passed this through their training institutions. Manthey (1993) documented the professions “long cherished and noble standard of zero tolerance for mistake making” (p. 8). The intolerance of mistakes and the way discipline had been enforced was attributed to standing in the way of autonomous practice essential to professionals.

The language of mistakes belied the attitudes in nursing practice; medication errors were committed and error defined as a deviation from a moral standard; so much weightier than a mistake. The NHS came into being in 1948 and accountability to the public for finance and service delivery grew alongside a blame culture for errors and mistakes. Positive and individual attitudes to errors were reinforced by disciplinary systems that were based on progressively punitive sanctions. Reason (2000 p. 68) a medical doctor exploring the models of management of human error described this focus of blame on an individual as dominant in the medical tradition. Unsafe acts, both error and procedural violations were acknowledged which could arise from forgetfulness and were often made by people at the forefront of care. This could include nurses who are often the forefront caregivers. Reason (2000 p. 768) argued that countermeasures were directed to the individuals to make them less fallible or wayward by introducing further protocols, disciplinary measures, threats of litigation, naming, blaming and shaming.

For some years the DOH has recognised this and named it as a blame culture and have been working towards changing this emphasis to a no-blame environment. Into this context the DOH has been working towards modernising the NHS with an emphasis on roles, responsibilities, accountability and the regulation of professionals. The NHS plan was launched in 2000: the National Clinical Assessment Authority and the National Patient Safety Agency in 2001 and the Commission for Healthcare Audit and Inspection (CHI) in 2002.

These have precipitated and formed part of an overhaul of regulatory and accountability arrangements with emphasis from changing from a “culture of blame to one of openness and learning from adverse events” and appreciating just processes based on accountability (DOH 2001). The expectation that there should be no or minimal error does not sit easily with modern complex and constantly changing health care systems with their many practices that are mistake prone as well as the making of mistakes being essential to humanness (Dawson 1999 p. 2).

Whilst it is understandable and right that the comparatively few nurses who commit crimes in the course of their work be suspended and investigated and that these errors be open to public scrutiny as exemplified by the Allitt Inquiry (DOH 1994); it may be argued the need to suspend nurses for errors which for a variety of complex reasons occur in day to day healthcare are reactive to professional anxiety and potential media attention.

Expanding on this Reinertson (2000 p. 30) indicated that errors were not spoken about because deep down there was a belief that individual diligence should prevent error, that the very existence of error damaged professional self-image. An allegation therefore, whether founded or unfounded, cut to the heart of nurses and nursing as a caring profession. Also there is no national guideline suggesting what an error or act of gross misconduct might be. Trust’s have their own interpretation, some with clear guidelines and others without. Nurses are therefore disciplined for a wide variety of incidents.

The amount of errors reported appears to be on the increase exemplified by the Health Service Ombudsman and these are gradually increasing each year (HSO 2004 p. 24). Though, the rise could be attributed to greater public awareness rather than an increased misconduct per se. The first and largest survey of NHS staff commissioned by the Healthcare Commission (2004) with 203,911 survey participants revealed that 35% of staff reported seeing an error that could have hurt patients in the previous month (p. 47). Ottewill (2003 p. 919) reviewing medical errors suggested that research showed that errors were widespread.

As error making has been shown to be on the increase and types of error have been identified it is important to understand the reasons behind the error making. Research has identified system failures as a cause of error. Oulton (2003 p. 201) and Henry (2000 p. 773) acknowledged most errors occurred not because nurses were reckless or lacked training but because organisational systems were not designed to prevent errors occurring. O’Shea (1999 p. 496) in a literature review examining medication errors concluded that they were a multi-disciplinary problem requiring a multi-disciplinary approach to reduce incidence of error.

Meurier (2000 p. 202) argued that to understand how errors were made in practice would enable appropriate preventative measures. A model to analyse critical incidents was used which gave insight into the chain of events leading to an adverse incident including, organisational factors, local circumstances and active failures. Walker and Lowe (1998 p. 97) researched nurses’ views on reporting medication error, finding that nurses feared reprimand from those in authority and were unwilling to accept responsibility for errors in which they were the final player in a complex series of events.

Work on this theme by Webster and Anderson (2002 p. 176) suggested that using an anonymous incident reporting scheme reduced drug error as part of an effective, non-punitive, systems-focused approach to safety. Goodall (1993 p. 46) argued that punishing nurses for minor drug errors further jeopardised patients’ care and suggested that the nurse’s feelings of self-condemnation outweighed any official verdict so making suspension in these circumstances an unnecessary event. In contrast, Adams (1993 p. 63) suggested that no matter was too minor and one could be judged guilty without proof.

However, often the reality of a minor matter being treated harshly with a guilty verdict until or unless the disciplined nurse could be proven innocent compounded psychological distress when facing disciplinary action. Counter to Adams view, Hastings (1999 p. 24) stated that suspensions should never be regarded as implying or proving the guilt of the employee but that it may be necessary to protect patients, staff and the employee under investigation. It was acknowledged that the disciplinary process was stressful for colleagues of the disciplined nurse and the manager but no mention was made of the stress for the nurse being disciplined.

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