An exclusion from work usually begins with a meeting, a short letter and a request to hand in your badge. Suppose you are a doctor or dentist employed by an NHS body in England. The rules on what happens next then sit in Part II of Maintaining High Professional Standards in the Modern NHS, known as MHPS. Every trust must reflect that national framework in its local policy. Its rules place firm duties on any employer that excludes a doctor, and the time to use them is the first fortnight.
Exclusion is a last resort, not a sanction
The framework uses the word exclusion to avoid confusion with suspension by the GMC or GDC. It describes exclusion as a precautionary measure and not a disciplinary sanction. It also says employers should reserve it for only the most exceptional circumstances. Exclusion has two permitted purposes. The first is to protect the interests of patients or other staff. The second is to assist the investigation where there is a clear risk that your presence would impede the gathering of evidence.
Before excluding you, the employer must consider the alternatives the framework lists. These include supervision of your normal duties by the medical or clinical director and restriction to certain clinical duties. They also include a move to administrative, research, audit or teaching work, and sick leave where a health problem needs investigating. NHS England's 2019 guide for responsible officers puts it plainly: usually permit normal duties, and only unusually exclude.
Immediate exclusion lasts no more than two weeks
A nominated manager may exclude you at once after a critical incident or a breakdown in relationships with the team. A nominated manager may also do so where your presence is likely to hinder the investigation. The manager must explain the reason in broad terms and advise you of your rights, including your right to representation. The manager must also agree a date with you, no more than two weeks away, for you to return for a further meeting. That fortnight is for a preliminary analysis, specialist advice and a case conference.
Formal exclusion has conditions you can test
Formal exclusion may only follow after the case manager has considered whether there is a case to answer. The case manager must then consider, at a case conference, whether there is reasonable and proper cause to exclude. When you hear of a formal exclusion, you should also hear why the case manager regards it as the only way to deal with the case. You should then have the opportunity to state your case and propose alternatives. Examples include further training, an occupational health referral or a voluntary restriction.
The letter confirming the exclusion must state the effective date and time and the duration of up to four weeks. It must also set out the content of the allegations and the terms of the exclusion. In addition, it must tell you that you and your companion may make representations about the exclusion to the designated board member at any time. Use that right, with a short written proposal of the restricted duties you would accept.
The four week rule
No NHS body may exclude you for more than four weeks at a time. The case manager must review the exclusion before the end of each four week period and report to the chief executive and the board. The employer must document each renewal and send you written notice on each occasion. If nobody actively reviews the exclusion, it lapses at the end of the four week period. You are then entitled to return to work, so keep a diary of every review date.
After three periods of exclusion, the employer must formally refer the case for national advice. The referral needs a report explaining why restrictions on practice would not be an appropriate alternative, and a timetable for finishing the investigation. The framework says there should normally be a maximum of six months' exclusion. Cases involving a criminal investigation of the practitioner are the exception. NHS Resolution now provides that advice through its Practitioner Performance Advice service. It says employers are expected to seek its advice when considering a formal exclusion. The same applies if an exclusion extends beyond 12 weeks.
While you are away
Exclusion under the framework should usually be on full pay. In return, you must remain available for work during your contracted hours. You must tell the case manager about any other paid or voluntary work and seek consent to continue it. You also need consent before you take annual or study leave. Your employer can give you 24 hours' notice to return.
The employer should not bar you from the premises automatically. Instead, the case manager must consider whether a bar is necessary. The framework also recognises that you may want to keep contact with colleagues, take part in clinical audit and keep up to date. The case manager should also arrange for you to take part in continuing professional development, with a mentor if a colleague is willing.
No NHS body may use so called gardening leave to resolve a problem the framework covers. If your employer has asked you to stay at home without a formal decision, ask for one in writing.
Other employers and the GMC
If there is concern that you are a danger to patients, the employer must inform other organisations you work for. That duty includes the private sector. A parallel duty falls on you at paragraph 100 of Good medical practice (2024). It applies if an organisation suspends you from a role requiring registration, or restricts your practice. You must then inform without delay any organisations you do medical work for and any patients you see independently.
How exclusions end
NHS Resolution's October 2023 analysis found that exclusion episodes fell to an average of 76 a year between 2019/20 and 2022/23, from 136 a year in the previous decade. Most lasted under six months, and 51 per cent ended with a return to clinical practice. Those figures describe the system rather than your case. Even so, they show that a return to work is the most common ending.
Other healthcare professionals
The MHPS limits on exclusion apply to doctors and dentists employed by NHS bodies in England. A nurse, pharmacist or HCPC registrant suspended by an employer is governed by the employer's policy and contract. See our pages for each profession.
Eloquia acts on exclusions on our inquests and NHS disciplinary track, on a fixed fee for each stage, stated plus VAT and including a specialist barrister from the outset.
If your employer excluded you this week, write down the date of the next review and ask for the case conference record. Then send the designated board member your proposal for alternative duties before that review takes place.
Sources
- Maintaining High Professional Standards in the Modern NHS, Part II: Restriction of practice and exclusion from work (copy hosted by East London NHS Foundation Trust)
- NHS England, A practical guide for responding to concerns about medical practice, v1.0 (March 2019)
- NHS Resolution, Exclusion trends and evaluation of NHS Resolution resources to manage exclusions (18 October 2023)
- NHS Resolution, Practitioner Performance Advice: what we can do
- GMC, Good medical practice (2024), Domain 4: Trust and professionalism
